P. v. Collier
Filed 5/9/13 P. v. Collier CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
BRENT MELTON COLLIER,
Defendant and
Appellant.
H036720
(Santa Clara
County
Super. Ct. No. 162764)
I. Statement of the Case
Defendant
Brent Melton Collier appeals from an order extending his involuntary commitment
to a state hospital as a mentally
disordered offender (MDO). (Pen.
Code, § 2972.)
title="">[1] He claims the court violated his
failing to advise him of his right to a jury trial and then conducting a
personal waiver.
We affirm
the order.
II. Background, Procedural History, and Extension Trial
In 1992,
defendant got onto a bus. He was
hallucinating and threw a rock at the bus driver, who he thought was an
undercover agent. The driver suffered
serious bodily injury. At the time,
defendant was under the influence of controlled substances and had stopped
taking medication for his mental disorder.
Defendant was later convicted of assault on a transportation worker.
In 1994,
while serving his prison term, defendant was transferred to Atastcadero
State Hospital
for mental health treatment, and he was later certified as an MDO. (§§ 2684; 2966.) When his prison term expired, he was
committed as an MDO, and his commitment has been extended periodically. (§§ 2970-2972.)
On November 17, 2010, before the
commitment was set to expire, the Santa Clara District Attorney filed a
petition to extend it.
(§ 2972.) On March 17, 2011, the court conducted a
bench trial on the petition.
Dr. Flavia
Gorge, defendant’s treating psychologist at Patton State Hospital, testified
that defendant suffered from schizophrenia, polysubstance abuse, and
polydipsia—i.e., excessive water drinking—which lowered his sodium levels,
created a form of intoxication, and diluted his psychotropic medication, which
made him more agitated, aggressive, irritable, and delusional and reduced his
impulse control.
Dr. Gorge
opined that defendant currently represented a significant risk of harm to
others due to his mental
illness. She reported that defendant
had committed two acts of violence against peers or staff during the past
year. In one incident, defendant got
angry and threw water on a staff member during a one-on-one observation of
defendant’s roommate. The roommate
reported, and defendant later admitted, that he threatened to kill the staff
member. In another incident, he got
angry and threw a chair at a patient.
Dr. Gorge
explained that to sustain a long-term treatment program, defendant had to
comply with medication orders and gain insight into his condition. She testified that although defendant was
currently compliant, he had not consistently complied with all of his
medication orders. He also did not
consistently admit that he has schizophrenia,
and at times, he minimized or denied it.
Dr. Gorge also explained that having wellness, safety, and recovery
plans would help defendant recognize his symptoms and the events that triggered
his psychosis. However, defendant he was
not “at that stage yet,†and he had not begun the process of understanding a
relapse prevention program. He was
attending group sessions and making small steps in stabilizing his condition,
but even with medication, he remained a danger to others. Dr. Gorge further opined that it was
premature to venture an opinion concerning whether he would continue to take
his medication if he were released.
Defendant
testified at the hearing. At time, he
rambled. At others time, he had
difficulty providing pertinent responses to questions. He said that his primarily disorder was
grandiosity, but he admitted having a little schizophrenia, which he believed
everyone has some symptoms of, and some paranoia. He said he would not now throw a rock at
anyone regardless of whether they were spying on him. When asked how he would cope with his
condition if released, he explained, “As long as there’s no foghorns when I’m
walking in the street in San Francisco yelling at me, might have mother’s voice
or nobody, when I’m driving down the road, nobody taking no gnarly left turn
cutting me off in the traffic running red lights or anything. Nothing in particular happening to me that’s
too coincidental for my mind to handle maintain my sanity with, then I’m okay. If it happens all the time everywhere I go I
get a little bit confused.†When asked
if he meant that he would “stay inside,†he responded, “Just the Internet
opened up. The world has changed,
especially in California. You can have
deliveries. You can have your groceries
delivered at home including your medications.
And I’ve got plenty—my two sisters and my mother are ready to provide me
with any amount of money it takes to pay for my medications and the local human
health services department of mental health in Los Gatos provide me with my
prescription.â€
Defendant
admitted that he needed to take medication.
He listed some he was taking and said he was an expert on
psychotropics. He admitted the acts of
violence described above. He claimed
that he threw the chair because the other patient had threatened him. He threw water in a staff member’s face
because the person was disrespecting him.
He believed members of the staff were not as professional as he expected
them to be considering how much money they were being paid. He suggested that he got respect from other
patients for “being as mental†as they were.
Defendant
agreed with Dr. Gorge that he was doing much better, but he wanted a second
opinion because he thought there might be one pill that would relieve him of
all his symptoms. He said his mental
illness began when he was 10. He said he
understood that he suffered from schizophrenia and had to take medication to
control it. He said he has been
compliant and as a result remained “clean and sober†and “[c]lean in hygiene
and assault free living.†He believed
that his mental disorder was in remission because he was taking medication and
said he would continue to take his medication forever if released. He admitted being addicted to coffee and
cigarettes and enjoying medicinal marijuana and a glass of wine with food. However, he knew that he could not use
marijuana or alcohol again if released.
He also said he would not drink too much water because of how it
affected him. He said he was “gung hoâ€
about working on a wellness and recovery plan and believed he was ready for
immediate release from the hospital. He
explained, “[T]his is just a cry for help, okay? I’ve been, you know, I think I need either a
second opinion or I need a second opinion or a transfer to some other
facility. I don’t think Patton is for
me. I’m tired of being down with the
homies. I’m like throwing a chair at him
and having a good time with the boys, hurt somebody, or I’m tired of just getting
along. I’ve been threatened by staff
before, but I won’t mention any names.
And I’m just—I’m tired of putting on the ritz. I put on the ritz for my family, everything,
my employers, and my professors that taught me everything I know, and when it’s
boils down to putting on the ritz for the work, it’s more than carrying the
world on your shoulders, you know.â€
After
hearing the witnesses, the court found that defendant posed a danger to others
due to his mental illness and extended his commitment.
III. The
MDO Commitment Scheme and Extension Procedure
The
Mentally Disordered Offender Act (the Act) (§ 2960 et seq.) permits the state
to involuntary commit persons who have been convicted of a violent crime
related to their mental disorders to a mental hospital for treatment until
their disorders can be kept in remission.
(In re Qawi (2004) 32 Cal.4th
1, 9 (Qawi); see Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061 (
of protecting the public while treating severely mentally ill offenders].)
The Act
provides treatment at three stages of commitment: as a condition of parole, in conjunction with
the extension of parole, and following release from parole. (Lopez,
supra, 50 Cal.4th at p. 1061.)
“Sections 2970 and 2972 govern the third and final commitment phase,
once parole is terminated. If continued
treatment is sought, the district attorney must file 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. (§ 2970.)â€
(Lopez, supra, 50 Cal.4th at
p. 1063.)
Section
2972, subdivision (a) provides, among other things, that when a petition is
filed, the court “shall advise the person . . . of the
right to a jury trialâ€; and “the trial shall be by jury unless waived by both
the person and the district attorney.â€
IV. Contentions
Initially the record on appeal
did not reflect a jury advisement or an express waiver. For these reasons, defendant claimed the
court violated his right to a jury trial first by failing to advise him and
then by failing to obtain his personal waiver.
Defendant acknowledged that in People v. Otis (1999) 70
Cal.App.4th 1174 (Otis) and People v.
Montoya (2001) 86 Cal.App.4th 825, 829 (Montoya),
the courts said that counsel had authority to waive a jury trial even
over an MDO’s objection. However,
defendant argued these cases were wrongly decided. According to defendant, a competent MDO has
the right to decide whether to waive a jury.
After
defendant’s opening brief was filed, the Attorney General requested, and we
issued, an order directing the trial court to prepare a settled statement
concerning any unrecorded conference at which the jury issue was
discussed. In its statement, the court
explained that on February 4, 2011, pursuant to its custom and practice, the
court called defense counsel and the prosecutor into chambers. Defendant was not present. At that time, defense counsel requested a
trial, and then both he and the prosecutor waived a jury.
In
respondent’s brief, the Attorney General noted counsel’s express waiver and,
citing Otis and Montoya, argued that the Act does not require an MDO’s personal
waiver or allow an MDO to veto or overrule a decision by counsel to waive a
jury trial. The Attorney General also
argued that any alleged errors in failing to advise and conducting a bench
trial were harmless under People v.
Watson (1956) 46 Cal.2d 818 (Watson).
In a
supplemental opening brief, defendant acknowledges counsel’s waiver but claims
the failure to advise him violated not only his statutory right to an
advisement but also his federal constitutional rights to due process and equal
protection. He claims that even if
counsel can waive a jury over an MDO’s objection, the court erred in accepting
counsel’s waiver because the record did not show that defendant knew about his
right to a jury trial, discussed it with counsel, and agreed to counsel’s
waiver.
In the
supplemental respondent’s brief, the Attorney General argues that counsel’s
waiver of defendant’s presence at pretrial hearings and his waiver of a jury
trial either forfeited any claim of error based on the failure to advise or
rendered such a claim moot. The Attorney
General further argues that the alleged failure to advise did not violate
defendant’s federal constitutional rights to due process and equal
protection. The Attorney General again
argues that under the Act, counsel has exclusive control over the decision to
waive a jury. Last, the Attorney General
claims that any alleged statutory violations are harmless.
V. Failure to Advise
As noted,
section 2972, subdivision (a) requires the court to “advise the person of his
or her right . . . to a jury trial.†This language imposes a mandatory duty on the
court.
Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542
[“ ‘shall’ †typically construed as mandatory; e.g., People v. Tindall (2000) 24 Cal.4th 767, 772.) It reflects a legislative intent to
judicially ensure that “the person†knows that he or she has the right to a
jury trial.
It is undisputed
that the court did not directly advise defendant on the record before
trial. Moreover, as the Attorney General
notes, counsel waived defendant’s presence at every pretrial hearing, and
defendant did not make his first appearance until March 17, the day of the
bench trial. However, contrary to
defendant’s claim, the court’s failure advise him does not compel reversal.
Before
any judgment can be reversed for error under state law, it must appear that the
error complained of “has resulted in a miscarriage of justice.†(Cal. Const., art. VI, § 13; Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This means that reversal is justified “when
the court, ‘after an examination of the entire cause, including the evidence,’
is of the ‘opinion’ that it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence of the
error.†(Watson, supra, 46 Cal.2d
818, 836.)
It is beyond dispute that counsel was aware of defendant’s
right to a jury trial. Where, as here,
counsel waives an MDO’s presence at pretrial hearings, effectively preventing a
direct judicial advisement before trial, the court may reasonably expect
counsel to discuss all pertinent matters that will arise or that have arisen in
pretrial hearings, including the right to a jury trial and whether to have
one. Indeed, “[l]ike all lawyers,
the court-appointed attorney is obligated to keep her client fully informed
about the proceedings at hand, to advise the client of his rights, and
to vigorously advocate on his behalf.
[Citations.] The attorney must
also refrain from any act or representation that misleads the court. (Bus. & Prof.Code, § 6068, subd. (d);
Rules Prof. Conduct, rule 5–200(B).)†(
151-152 (John L.), italics
added.) Moreover, absent a showing to
the contrary, “[a] reviewing court will indulge in a presumption that counsel’s
performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial
strategy.†(People v. Carter
(2003) 30 Cal.4th 1166, 1211; Conservatorship
of Ivey (1986) 186 Cal.App.3d 1559, 1566; e.g., Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 272 (Mary K.) [where no evidence to the contrary, court may presume
counsel discussed jury waiver with client before waiving on client’s behalf].)
Under
the circumstances and in the absence of evidence to the contrary, we may
presume that counsel discussed the jury issue with defendant. Moreover, the record does not suggest that
defendant was unaware of his right to a jury trial notwithstanding the lack of
a direct judicial advisement. We note
that this was not the first time defendant’s MDO commitment had been
extended. More
importantly, the record does not suggest that defendant was unaware that
counsel intended to waive a jury and had done so or that counsel acted without
defendant’s knowledge or consent or that defendant wanted a jury trial and
objected (or would have objected) to counsel’s waiver. Any such inferences would be pure speculation
on our part.
title="">[4]
Last, we
note that a single opinion by a psychiatric expert that the defendant is
currently dangerous due to a mental
disorder can constitute substantial evidence to support the extension of a
commitment. (People v. Zapisek
(2007) 147 Cal.App.4th 1151, 1165; People v. Bowers (2006) 145
Cal.App.4th 870, 879.)
Dr. Gorge’s
testimony represents overwhelming evidence to support the court’s finding that
defendant posed a risk of harm due to mental disorders that were not in
remission. As noted, Dr. Gorge explained
that defendant’s excessive water consumption diluted his medication, made him
more prone to become agitated, aggressive, irritable, and delusional, and
reduced his impulse control. She noted
that he had made threats and been violent at the hospital during the past
year. She observed that he was not
always compliant with his mediation orders, he did not consistently admit his
schizophrenia, and at times denied it.
She considered it premature to offer an opinion about whether defendant
would take his medication if released.
And she said that defendant had not yet developed a wellness, safety,
and recovery plan, which would help him recognize his symptoms and the events
that trigger is psychosis.
Defendant
offered no expert testimony, and his own testimony had no tendency to impeach
Dr. Gorge’s credibility or undermine her analysis and opinion. On the contrary, defendant rambled, and his
testimony was at times disjointed.
Defendant believed that his mental disorder was in remission and that he
was ready for immediate release because he was taking medication and said he
would continue to do so. However, his
explanation for how he would cope if released made little sense.
Under the
circumstances, we do not find it reasonably possible, let alone reasonably
probable, that defendant would have obtained a more favorable result had the
court ordered his presence at a pretrial hearing and expressly advised him
about the right to a jury trial. (Watson,
supra, 46 Cal.2d at p. 836; cf.
367, 377, 378 [failure to advise about sex registration requirement harmless].)
Presumably
to invoke the more stringent harmless-error test applicable to federal
constitutional errors (see Chapman v.
California (1967) 386 U.S. 1, 24 [harmless beyond a reasonable doubt]),
defendant claims the court’s failure to advise him violated his federal
constitutional rights.
Citing
state’s failure to comply with its own statutes and its decision to commit him
without complying with those statutes violated his
The United
States Supreme Court has not cited Hicks for the proposition asserted by
defendant. “[The United States Supreme
Court has] long recognized that a ‘mere error of state law’ is not a denial of
due process. [Citation.] If the contrary were true, then ‘every
erroneous decision by a state court on state law would come [to this Court] as
a federal constitutional question.’ [Citations.]†(Engle v. Isaac (1982) 456 U.S. 107,
121, fn. 21.) Due process does not
safeguard “the meticulous observance of state procedural
prescriptions . . . . †(Rivera v. Illinois (2009) 556 U.S.
148, 158 [“Because peremptory challenges are within the States’ province to grant
or withhold, the mistaken denial of a state-provided peremptory challenge does
not, without more, violate the Federal Constitution].)
In
court rejected the MDO’s claim that the federal due process clause guaranteed
an MDO the right to a jury trial.
“ ‘Where . . . a State has provided for the
discretion of the trial jury, it is not correct to say that the defendant’s
interest in the exercise of that discretion is merely a matter of state
procedural law. The defendant in such a
case has a substantial and legitimate expectation that he will be deprived of
his liberty only to the extent determined by the jury in the exercise of its
statutory discretion, [citation], and that liberty interest is one that the
Fourteenth Amendment preserves against arbitrary deprivation by the
State.’ [Citation.] A jury sitting in a civil hearing pursuant to
sections 2970 and 2972 does not impose criminal punishment and has no power to
determine the extent to which the defendant will be deprived of his
liberty. Defendant’s jury trial interest
thus is, in this case, ‘merely a matter of state procedural law’ and does not
implicate the Fourteenth Amendment.
[Citation].) (
defendant’s claim that due process guarantees the right to a jury advisement. The required advisement does not create a
state liberty interest, and a court’s failure to advise does not deprive
defendant of any liberty interest. (See Swarthout
v. Cooke (2011) ___ U.S. ___ [131 S.Ct. 859, 862] [“When, however, a State
creates a liberty interest, the Due Process Clause requires fair procedures for
its vindication—and federal courts will review the application of those
constitutionally required procedures.â€]; e.g., People v. Letner (2010) 50 Cal.4th 99, 195.) Rather, like the right to a jury trial
itself, the required advisement is merely a matter of state procedural law.
Defendant
also relies on People v. Alvas (1990)
221 Cal.App.3d 1459 (Alvas). In Alvas,
the court decided, among other things, that a defendant against whom
involuntary commitment proceedings are instituted under Welfare and
Institutions Code section 6500 based upon the allegation that he or she is
“mentally retarded†and a danger to him or herself or others has a due process
right to a jury advisement. (
however, the Supreme Court in People v.
Barrett (2012) 54 Cal.4th 1081 (Barrett)
disapproved Alvas on this point. (Id.
at pp. 1105-1106.)
Defendant
also cites Alvas for the proposition
that the failure to advise him violated the federal guarantee of
In
trial, was found to be mentally retarded and a danger to himself and
involuntarily committed to a state institution under Welfare and Institutions
Code section 6500. (Alvas, supra, 221 Cal.App.3d at p. 1462.) The statute does not itself provide the right
to a jury trial. However, in
Cal.App.3d 62, the court held on equal protection grounds that “allegedly
mentally retarded persons are entitled to a jury trial upon request.†(Id.
at p. 69, italics added.)
name="_ftnref6" title="">[6]
the defendant did not request a jury trial.
Rather, he claimed the court erred in failing to advise him and obtain a
waiver of his right to a jury trial. The court agreed.
Although
the statute does not require a judicial advisement, the Alvas court opined that mentally retarded persons facing a
commitment were similarly situated to those facing commitment under the new
Lanterman-Petris-Short Act (LPS Act).
Thus, since the LPS Act requires a judicial advisement, mentally
retarded defendants were entitled to the same procedural safeguard. (Alvas,
supra, 221 Cal.App.3d at pp. 1463-1465.)
The logic
of Alvas has no application here
because section 2972, like the LPS Act, expressly requires an advisement. We do not see how the failure to give a
statutorily required advisement somehow qualifies as a violation of equal
protection. More importantly, the
Supreme Court in Barrett,
supra, 54 Cal.4th at pp. 1106-1111.)
VI. Counsel’s Waiver and the Bench Trial
As noted,
defendant claims the court erred in accepting counsel’s waiver and conducting a
bench trial. He argues that a competent
MDO has the right to decide whether to waive a jury, and therefore, the statute
requires an MDO’s personal waiver. The
Attorney General claims that a personal waiver is not
required because counsel controls the jury decision and can waive a jury even
over an MDO’s objection.
It
is settled that the erroneous denial of a statutory right to a jury trial is subject to harmless-error review
under the Watson test. (People v. Epps (2001) 25 Cal.4th 19,
29.) Our
analysis and conclusion that the court’s failure to advise was harmless applies
with equal force to defendant’s claim that the court erred in accepting
counsel’s waiver, failing to obtain his personal waiver, and conducting a bench
trial. Given the evidence presented at
trial, we do not find it reasonably probable the result would have been more
favorable to defendant had the court conducted a jury trial. (E.g., People v.
Cosgrove (2002) 100 Cal.App.4th 1266, 1276
[denial of statutory right to MDO trial harmless].)
For
this reason, it is not necessary to address the parties’ diametrically opposing
legal claims concerning the validity of counsel’s waiver and the bench trial.
VIII. Disposition
The order
extending defendant’s MDO commitment is affirmed.
______________________________________
RUSHING, P.J.
I CONCUR:
____________________________________
PREMO, J.
ELIA, J., Concurring
I
respectfully concur in the judgment on the ground that no reversible error has
been shown. (Cal. Const., art. VI,
§ 13; People v. Watson (1956) 46
Cal.2d 818, 836.) A trial court's
judgment or order is presumed correct. (
557, 564.)
" '. . . All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not
only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.'
[Citations.]" (
Since the record is silent on whether appellant knew of his right to a
jury trial and agreed to a court trial, we must presume for purposes of this
appeal that his counsel waived a jury in accordance with his client's informed
consent (see maj. opn., ante, p.
6). (See Denham v. Superior Court, supra,
2 Cal.3d at p. 564; see also Conservatorship
of John L. (2010) 48 Cal.4th 131, 151-152 [obligations of counsel]; cf.
4th ___ [2013 WL 1736497,17-18] (conc. opn. of Elia, J.).)
_____________________________
ELIA,
J.
name="_ftn1" title=""> [1] All unspecified statutory references are to
the Penal Code.
name="_ftn2" title=""> [2] Section 2972, subdivision (a) provides, “(a)
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, however, in order to reduce costs
the rules of criminal discovery, as well as civil discovery, shall be
applicable. [¶] 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. The trial shall commence no later
than 30 calendar days prior to the time the person would otherwise have been
released, unless the time is waived by the person or unless good cause is
shown.â€
