P. v. Hendrix

Filed 6/7/06 P. v. Hendrix CA6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

John Henry Hendrix appeals an order determining him to be a mentally disordered offender (MDO), and committing him to the Department of Mental Health for treatment. (Pen. Code, § 2962 et seq.)[1] We reiterate our holding in People v. Otis (1999) 70 Cal.App.4th 1174, 1176 - 1177. We are not persuaded to change our view. Counsel may waive his client's right to a jury trial in an MDO proceeding. (§ 2966, subd. (b).) We affirm.

FACTS AND PROCEDURAL HISTORY

On November 7, 2002, Hendrix pleaded guilty to assault with a deadly weapon, other than a firearm. (§ 245, subd. (a)(1).) The circumstances of

his criminal offense involved punching an elderly nun in the face at a soup kitchen. The Alameda County Superior Court sentenced Hendrix to a prison term of three years.

On April 14, 2005, the Board of Prison Terms determined that Hendrix was an MDO pursuant to the criteria of section 2962. As a condition of parole, it required him to accept treatment from the Department of Mental Health. Hendrix filed a petition pursuant to section 2966, subdivision (b), to contest the decision of the Board of Prison Terms. Over Hendrix's objection, his attorney waived a jury trial. (People v. Otis, supra, 70 Cal.App.4th 1174, 1176-1177.)

At trial, Doctor Phillip Kelly, a psychiatrist at Atascadero State Hospital, testified that he is Hendrix's treating psychiatrist. He opined that Hendrix suffers from a severe mental disorder, either schizophrenia or schizo-affective disorder. Kelley recounted Hendrix's lengthy history of mental disorders, criminal convictions for violent crimes, and arrests. He opined that Hendrix satisfies the requirements of section 2962, in part because he ceased taking medication at times, and attempted to assault a hospital psychiatrist.

The trial court determined that Hendrix met the requirements of section 2962, subdivision (d)(1), beyond a reasonable doubt. It committed him to the Department of Mental Health for treatment.

Hendrix appeals and urges that we reconsider our holding in People v. Otis, supra, 70 Cal.App.4th 1174, 1176-1177.

DISCUSSION

Hendrix contends that the trial court violated his statutory and constitutional rights to a jury trial by accepting the waiver from counsel alone. He argues that Otis is incorrect because MDO proceedings are criminal proceedings; MDO statutes permit individual decision-making regarding other matters, suggesting there is no presumption of incompetence; and he has a due process right to a jury trial in a civil commitment proceeding. Hendrix asserts that the error is prejudicial.

Although it may not always seem that way, MDO proceedings are not criminal in nature and the MDO commitment is not punishment. Section 2966, subdivision (b), provides that an MDO proceeding "shall be a civil hearing . . . ." The purpose of the MDO commitment scheme is not punitive; it serves to protect the public and provide mental health treatment for dangerous offenders. (People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1270-1273; People v. Otis, supra, 70 Cal.App.4th 1174, 1176.) Not all criminal law constitutional protections apply in civil commitment proceedings. (People v. Rowell (2005) 133 Cal.App.4th 447, 451 [Sexually Violent Predator commitment proceedings].)

In People v. Otis, supra, 70 Cal.App.4th 1174, 1177, we concluded that counsel may waive a jury trial on his client's behalf. We stated: "Section 2966 concerns persons who have been found by the Board of Prison Terms to be mentally disordered. The Legislature must have contemplated that many persons, such as [appellant], might not be sufficiently competent to determine their own best interests. There is no reason to believe the Legislature intended to leave the decision on whether trial should be before the court or a jury in the hands of such a person." (Id, at p. 1177.) Although the MDO scheme allows a defendant other personal rights, the Legislature did not require that he personally waive the right to a jury trial. (People v. Montoya (2001) 86 Cal.App.4th 825, 831.)

Moreover, the jury trial right in an MDO proceeding does not implicate federal due process. (People v. Montoya, supra, 86 Cal.App.4th 825, 831.) "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." (Id., at p. 832.)

In any event, the evidence clearly establishes that Hendrix satisfied the MDO criteria. There is no reasonable probability that he would have received a more favorable result had a jury considered the commitment. (People v. Cosgrove, supra, 100 Cal.App.4th 1266, 1275-1276 [standard of review].)

The commitment order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.