P. v.
Gonzales





















Filed 3/21/13 P. v. Gonzales CA3











NOT TO
BE PUBLISHED









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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE DISTRICT

(Sacramento)

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>

THE PEOPLE, Plaintiff and Respondent, v. ROLAND GONZALES, Defendant and Appellant.

C066808 (Super. Ct. No. 99F02522)

Defendant Roland Gonzales appeals
from an order of the trial court extending his mental health commitment for two
years, from October 10, 2010 to October
10, 2012,
pursuant to Penal Code section 1026.5, subdivision (b). (Further undesignated section references are
to the Penal Code.) Defendant contends
the extension order is procedurally and substantively flawed, because (1) there
was no extension petition before the court at the time of the order, (2) the
court failed to conduct a hearing on the extension, and (3) there is
insufficient evidence to support the order.
We reject each of defendant’s contentions and affirm the order.

Facts
and Proceedings

On November
12, 1999,
defendant was charged with assault with a
deadly weapon (§ 245, subd. (a)(1)) and entered a plea of not guilty
by reason of insanity. The trial court
ordered defendant committed to Atascadero State Hospital for the maximum term of
eight years (cf. § 1026.5, subd. (a)(1)).


Defendant’s initial term of
commitment was set to expire on October 10, 2008. On July 23,
2008,
the prosecutor filed a petition for extension of defendant’s commitment
pursuant to section 1026.5, subdivision (b) (the 2008 petition). As described more fully below, that
subdivision permits extension of an initial commitment for successive periods
of two years where a defendant continues to represent a substantial danger of
physical harm to others due to his href="http://www.sandiegohealthdirectory.com/">mental disease, defect or
disorder.

On August
15, 2008,
the trial court calendared the 2008 petition for hearing. However, because of repeated continuances not
relevant to the matter before us, the hearing did not take place until April
13, 2010.

On or about March
22, 2010,
22 days before the hearing on the 2008 petition, the prosecutor filed a new
petition for extension of commitment (the 2010 petition), seeking extension of
defendant’s commitment through October 10, 2012. The 2010 petition alleged defendant continues
to suffer from a mental disease, defect or disorder that poses a substantial
danger of physical harm to others. It
also requested that the matter be heard concurrently with the 2008
petition.

After hearing evidence on April 13
and 15, the trial court issued an order granting the 2008 petition and
extending defendant’s commitment through October
10, 2010. Inexplicably, a footnote to that order
states: “The parties have reserved the
court’s jurisdiction to determine whether the two-year commitment is measured
from the petition, the date of the court’s determination, or, two years beyond
the present commitment.”

On August
27, 2010,
the trial court issued the following minute order: “DDA Satnam Rattu present. CAC Robert Saria and respondent’s appearance
waived. [¶] Defense counsel
submitted the matter. Pursuant to
stipulation of counsel Petition for Extended Commitment pursuant to [] Section
1026.5 is hereby granted. It is ordered
that [defendant’s] commitment to Department of Mental Health be extended for
two (2) years effective October 10, 2010. [¶]
Maximum commitment date October 10, 2012. [¶]
Commitment order signed this date by the Court.” The same day, the court signed an “Order
Extending Commitment to the Department of Mental Health,” extending defendant’s
commitment through October 10, 2012.

Defendant appeals from the August
27, 2010,
order.

Discussion

I

The Record on Appeal

The original clerk’s transcript on
appeal did not contain the 2010 petition.
Defendant moved to augment the record, seeking among other things “[t]he
2010 petition for extension of commitment and supporting affidavits that is the
subject of the August 27, 2010 order appealed
from.” We granted the motion. In response, the Sacramento County Superior
Court Clerk submitted a declaration asserting:
“[A]fter a thorough search of the court file, this document [the 2010
petition] could not be located[.]”

The People moved to augment the
record to include the 2010 petition, a copy of which was attached to the
People’s motion. We granted the
request.

The original reporter’s transcript
did not include the August 27, 2010, hearing. Defendant requested a settled statement
regarding the proceedings on that date.
In support of the request, defendant submitted the declaration of his
appellate counsel, who stated he had spoken with defendant’s trial counsel, Robert
Saria, and Saria told him there had been no 2010 petition and no stipulation at
the August 27, 2010, hearing. Appellate counsel further indicated he was no
longer able to communicate with Saria.
Defendant proposed a settled statement that reads, in relevant part:

“1. The minutes and the court order
for that date [August 27, 2010] fully and completely
describe the courtroom proceedings on that date.

“2. Nothing took place, and no
further discussion was had, on that date other than what is reflected in the
minutes and court order.

“3. There was no stipulation or new
petition before the Court other than the 2008 petition and the ‘stipulation’ in
the order of April 15, 2010 in which the court said, ‘The parties have reserved
the court’s jurisdiction to determine whether the two-year commitment is
measured from the petition, the date of the court’s determination, or, two
years beyond the present commitment.’ ”


A copy of the request for settled statement was
served on the prosecutor, who apparently failed to respond. The trial court approved the proposed settled
statement on January 23, 2012.

II

The Settled Statement

This matter involves application of section
1026.5, subdivision (b), which reads, in relevant part:

“(1) A person may be committed
beyond the term prescribed by subdivision (a) [the initial term of commitment]
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.

“(2) Not later than 180 days prior
to the termination of the maximum term of commitment prescribed in subdivision
(a), the medical director of a state hospital in which the person is being
treated . . . shall submit to the prosecuting attorney his or her
opinion as to whether or not the patient is a person described in paragraph
(1). . . . The prosecuting
attorney may then file a petition for extended commitment in the superior court
which issued the original commitment.
The petition shall be filed no later than 90 days before the expiration
of the original commitment unless good cause is shown. . . . [¶]
. . . [¶]

“(4) The court shall conduct a
hearing on the petition for extended commitment. . . . The trial shall commence no later than 30
calendar days prior to the time the person would otherwise have been released,
unless that time is waived by the person or unless good cause is shown. [¶] . . . [¶]

“(8) If the court or jury finds that
the patient is a person described in paragraph (1), the court shall order the
patient recommitted to the facility in which the patient was confined at the
time the petition was filed. This
commitment shall be for an additional period of two years from the date of
termination of the previous commitment, and the person 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.
. . . [¶] . . . [¶]

“(10) Prior to termination of a
commitment under this subdivision, a petition for recommitment may be filed to
determine whether the patient remains a person described in paragraph (1). The recommitment proceeding shall be
conducted in accordance with the provisions of this subdivision.”

Defendant contends the settled
statement establishes both that there was no 2010 petition before the court at
the time of the August 27, 2010, hearing and that there was no stipulation
entered into between the parties at that hearing. This he presumably gathers from paragraph 3
of the settled statement, which, as noted above, states: “There was no stipulation or new petition
before the Court other than the 2008 petition and the ‘stipulation’ in the
order of April 15, 2010 in which the court said, ‘The parties have reserved the
court’s jurisdiction to determine whether the two-year commitment is measured
from the petition, the date of the court’s determination, or, two years beyond
the present commitment.’ ” Hence,
defendant argues, there was no legal basis for extending his commitment beyond
October 10, 2010. However, as we shall
explain, paragraph 3 of the settled statement is clearly inconsistent with the
remainder of that statement and cannot reasonably be read as defendant
argues.

California Rules of Court, rules
8.137 and 8.346 authorize the use of a settled statement whenever any portion
of the oral proceedings cannot be
transcribed. A settled statement is
intended to record what actually took place in the proceedings for which a
reporter’s transcript or notes are not available. (People
v. Anderson (2006) 141 Cal.App.4th 430, 440.) “Consistent with this limited purpose, the
settled statement is ‘intended to ensure that the record transmitted to the
reviewing court preserves and conforms to the proceedings actually undertaken
in the trial court . . . .’ ” (Ibid.)

Because a settled statement is an
attempt to recreate what actually occurred in court, it is no better than the
information that goes into drafting it.
The adequacy of a settled statement in recreating oral proceedings
depends upon the availability of notes of the proceedings, whether the trial
court is able to remember the missing portion of the record, and the ability of
the parties to participate in reconstructing the record. (People
v. Cervantes (2007) 150 Cal.App.4th 1117, 1121.) Obvious misstatements in a settled statement,
which clearly do not reflect what actually occurred, may be disregarded. (See People
v. Landis (2007) 156 Cal.App.4th Supp. 12, 14.)

In the matter before us, none of the
participants present at the time of the August 27, 2010, hearing
contributed anything to the settled statement.
As described above, appellate defense counsel prepared the settled
statement based on information obtained from trial counsel. Trial counsel was no longer available to
provide input, and the prosecutor failed to participate in the process. At the time he signed the settled statement,
the trial judge noted: “Neither counsel
appears to have met, conferred; and, sadly, the court has no independent
recollection of the relevant proceedings.”
Neither the prosecutor nor defendant’s trial counsel signed the settled
statement. Thus, the only information
provided for preparation of the settled statement was a single hearsay
assertion by defendant’s trial counsel, related to the court by defendant’s
appellate counsel.

Paragraph 3 of the settled statement
is clearly inconsistent with paragraph 1, which reads: “The minutes and the court order for that
date [August 27, 2010] fully and completely describe the courtroom proceedings
on that date.” As noted earlier, the
August 27, 2010, minutes state, in pertinent part: “Pursuant to stipulation of counsel Petition
for Extended Commitment pursuant to [] Section 1026.5 is hereby granted. It is ordered that [defendant’s] commitment
to Department of Mental Health be extended for two (2) years effective October
10, 2010. [¶] Maximum commitment date October 10,
2012.”

Defendant argues there is no inconsistency
between paragraphs 1 and 3, because the stipulation to which the minute order
refers was that entered into at the time of the April 15, 2010, order extending
defendant’s commitment until October 10, 2010, as described in paragraph 3 of
the settled statement. Likewise, the
petition to which the court referred, defendant argues, was the 2008
petition.

But that makes no sense in the context. The stipulation to which defendant refers was
a reservation of jurisdiction to allow the court to decide if the two-year
commitment on the 2008 petition begins on the date of that petition, the date
the prior commitment ended, or the date of the court’s ruling. Under the first option, the renewed
commitment would run from July 2008.
Under the second, the commitment would run from October 2008. Under the third, it would run from April
2010. Under none of these options would
the commitment run from October 2010, as the court ordered on August 27,
2010. Thus, the reservation of
jurisdiction in the April 15, 2010, order could not possibly have been the
stipulation referred to in the August 27, 2010, minutes. Because defense trial counsel had not so
stated, this was simply speculation on the part of appellate defense counsel.

By contrast, the court’s minute order
appears clear. It states in relevant
part: “Pursuant to stipulation of
counsel Petition for Extended Commitment pursuant to Penal Code Section 1026.5
is hereby granted.” In other words, the
petition is granted “[p]ursuant to stipulation.” This is not a reference to an earlier
stipulation regarding the starting point for a prior extended commitment, as
paragraph 3 of the settled statement asserts.
It refers to a stipulation for a current extension.

As for the petition to which the
court referred in its minute order,
that could not have been the 2008 petition, which the court had already
granted. Under section 1026.5,
subdivision (b)(1), a defendant may be committed beyond the initial term only
under the procedure set forth in section 1026.5, subdivision (b). Under section 1026.5, subdivision (b)(8),
such recommitment “shall be for an additional period of two years from the date
of termination of the previous commitment, and the person 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.” Absent a contrary showing, we assume official
duty has been regularly performed.
(Evid. Code, § 664; People v.
Frye (1994) 21 Cal.App.4th 1483,
1486; People v. Young (1991) 228 Cal.App.3d 171, 186.) Thus, we assume the trial court was aware of
the limits of its authority to extend the commitment on the 2008 petition for
more than two years. And since the 2010
petition had been filed with the court before the August 27, 2010, hearing, we
assume it was that petition to which the court was referring.

Thus, notwithstanding paragraph 3 of
the settled statement, we conclude the 2010 petition was before the court at
the August 27, 2010, hearing and that, pursuant to stipulation of the parties
entered into at that time, the trial court granted that petition, extending
defendant’s commitment from October 10, 2010 to October 10, 2012.

III

Defendant’s Challenge to
the August 27, 2010, Order

Defendant’s arguments on appeal
challenging the August 27, 2010, order spring primarily from an assumption that
there was no 2010 petition before the trial court at the time. He argues the court extended his commitment
until October 10, 2012, based instead on the 2008 petition, an extension that
exceeded the two years authorized by section 1026.5, subdivision (b). However, as we have explained, the August 27,
2010, order was clearly based on the 2010 petition, not the 2008 petition.

Defendant also argues he was denied
due process when trial on the 2008 petition was not held until April 2010. However, defendant acknowledges it is
unnecessary to consider this argument since his recommitment on the 2008
petition has expired. We note further
that the argument is not properly before us in any event, because defendant did
not appeal from the trial court’s order granting the 2008 petition and
extending his commitment until October 10, 2010. Likewise, defendant’s argument that there is
insufficient evidence to support the finding that he qualifies for extension
under section 1026.5, subdivision (b), is not properly before us. As explained above, the extension from which
defendant appeals, for the period from October 10, 2010 to October 10, 2012,
was based on a stipulation entered into on August 27, 2010, not evidence
presented in the April 2010 hearing or some other hearing.

Defendant contends the trial court
had no authority to extend his commitment by way of a stipulation. He argues section 1026.5, subdivision (b),
which is the only means by which his commitment may be extended, requires a
hearing to determine if he continues to pose a danger. Defendant argues this hearing requirement is
jurisdictional and without a hearing the court lacked jurisdiction to extend
his commitment. Thus, he argues, the
extension order of August 27, 2010, is void.


The People contend, in opposition, that the
procedures set forth in section 1026.5, subdivision (b), are not jurisdictional
but directory and, therefore, may be waived.
They further argue defendant waived the requirement of a hearing by
stipulating to an extension before the end of his then current commitment.

The People further contend
defendant’s appeal is not properly before us, because defendant failed to
obtain a certificate of probable cause.
Section 1237.5 states: “No appeal
shall be taken by the defendant from a judgment of conviction upon a plea of guilty
or nolo contendere, or a revocation of probation following an admission of
violation, except where both of the following are met: [¶] (a) The defendant has filed with the
trial court a written statement, executed under oath or penalty of perjury
showing reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings. [¶]
. . . [¶] (b) The trial court
has executed and filed a certificate of probable cause for such appeal with the
clerk of the court.” It is undisputed
defendant failed to obtain a certificate of probable cause in this instance. However, it is also clear the present matter
does not involve a plea of guilty or nolo contendere to a criminal charge or a
revocation of probation. In fact, as
explained below, the present matter is not a criminal proceeding at all. Hence, section 1237.5 has no application to
the present matter.

Section 1026.5, subdivision (b)(4),
reads: “The court shall conduct a
hearing on the petition for extended commitment. The trial shall be by jury unless waived by
both the person and the prosecuting attorney.
The trial shall commence no later than 30 calendar days prior to the
time the person would otherwise have been released, unless that time is waived
by the person or unless good cause is shown.”


Notwithstanding the requirement that
any waiver of the jury trial requirement be by “the person,” such waiver may
instead be entered by counsel for the defendant. Civil extension proceedings under section
1026.5, subdivision (b), are civil in nature, the purpose of which is
treatment, not punishment. >(People
v. Powell (2004) 114 Cal.App.4th 1153, 1157 (Powell); People v. Wilder
(1995) 33 Cal.App.4th 90, 99.) Thus,
all the procedures and rights available to a criminal defendant are not
applicable to a civil committee under section 1026.5. On the other hand, because commitment
extension proceedings involve a significant restraint on liberty, the
individual is entitled to some due process protections. (Cf. Moore
v. Superior Court (2010) 50 Cal.4th 802, 818.) The procedural safeguards required in a given
context “are flexible [citation], and the quantum and quality of the process
due depends upon the nature and purpose of the challenged commitment. [Citation.]
In making this determination, the courts weigh, assess, and consider
various factors affected by the disputed procedure. Distilled, these considerations involve (1)
the various private interests at stake, (2) any competing state or public
concerns, and (3) the potential risk of an erroneous or unreliable outcome.” (People
v. Barrett (2012) 54 Cal.4th 1081, 1099.)


In People v. Masterson (1994) 8 Cal.4th 965, the California Supreme
Court concluded a criminal defendant’s personal waiver is not required to
permit a competency hearing before a jury of 11 rather than 12 jurors. In so concluding, the high court made the
following key point: “The sole purpose
of a competency proceeding is to determine the defendant’s present mental
competence, i.e., whether the defendant is able to understand the nature of the
criminal proceedings and to assist counsel in a rational manner. [Citations.]
Because of this, the defendant necessarily plays a lesser personal role
in the proceeding than in a trial of guilt.
How can a person whose competence is in doubt make basic decisions
regarding the conduct of a proceeding to determine that very question?” (>Id. at p. 971.)

In Powell, the Court of Appeal held counsel may waive a defendant’s
right to trial by jury in a section 1026.5, subdivision (b), proceeding even
over the defendant’s objection. (>Powell, supra, 114 Cal.App.4th at p. 1156.)
The court there noted “a NGI committee who is not mentally competent >must act through counsel. If the person is not competent to waive jury
at the extension trial, his or her attorney may waive jury on his or her
behalf.” (Id. at p. 1158.) According
to the court, “[a]n 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.” (>Ibid.; accord People v. Otis (1999) 70 Cal.App.4th 1174, 1177 [upholding
counsel’s waiver of jury trial in extension proceeding of mentally disordered
offender].)

Just as counsel may waive the
defendant’s right to trial by a jury, he or she may also waive the defendant’s
right to trial altogether. Although
section 1026.5, subdivision (b)(4), says the court “shall” conduct a hearing,
use of the word “shall” is not dispositive.
(People v. Lara (2010) 48
Cal.4th 216, 227.) “The context of the
language, as well as other indicia of legislative intent, must be
considered.” (Ibid.) Even in a criminal
prosecution involving all possible due process rights, the defendant may waive
his or her constitutional and statutory rights to trial and enter a guilty
plea. This is only logical. While the court may conduct a trial, there is
no requirement that the defendant mount a defense. Under section 1026.5, subdivision (b), a
petition for recommitment must be accompanied by affidavits specifying the
factual basis for believing the defendant meets the statutory
requirements. (§ 1026.5, subd.
(b)(2).) The trial is an opportunity for
the defendant to try and refute that showing.
But there is no requirement that the defendant avail himself of that
opportunity.

In the present matter, it made
perfect sense for defendant to waive his right to a trial. Only four months earlier, defendant had
participated in a trial where he was found subject to an extended
commitment. It is reasonable for
defendant and his counsel to expect the result would be no different in a subsequent
trial. Thus, rather than disrupt his
treatment to participate in a trial where the result can reasonably be
anticipated, it was logical for defendant to waive such trial and concentrate
on improving his mental condition in the hope of avoiding a further extension
two years hence.

We conclude the trial court properly
extended defendant’s commitment under section 1026.5, subdivision (b), from
October 10, 2010 to October 10, 2012, based on stipulation of the parties.

Disposition

The judgment (order) is
affirmed.







HULL ,
Acting P. J.







We concur:







MAURO , J.







HOCH , J.