P. v. Kleder

Filed 8/14/08 P. v. Kleder CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In 1995, the trial court found defendant John D. Kleder not guilty by reason of insanity (NGI) on three counts of arson, one count of reckless evasion of a pursuing officer, and one count of driving under the influence. It committed him to a state hospital for 11 years and eight months pursuant to Penal Code section 1026.[1] The commitment expired, and the trial court extended it for two years upon the Peoples petition. ( 1026.5.) The two-year period expired, and the trial court extended it for two years upon the Peoples petition. On appeal, defendant contends that (1) the trial court transgressed his statutory right and constitutional-due-process right to a jury trial by accepting defense counsels waiver of the right, (2) alternatively, the NGI statutory scheme allowing waiver of jury trial by counsel transgresses his constitutional right to equal protection of the law, (3) the trial court erred by failing to conduct a Marsden[2] hearing, and (4) he received ineffective assistance of counsel because counsel had a conflict of interest, failed to move to dismiss the petition as untimely, and failed to subject the case to meaningful adversarial testing. We affirm the judgment.

background

During pretrial proceedings, defense counsel waived defendants right to jury trial over defendants objection and in defendants absence. At trial, the Napa State Hospital staff psychologist opined that defendant had paranoid schizophrenia evidenced by a delusion that he was the second coming of Jesus Christ who was being persecuted and poisoned by IBM. She opined that defendant could not function safely in community treatment because he did not believe that he was mentally ill and, when experiencing a high-level delusion, would fail to take his medication in the belief that the medication was poison. After defense counsel cross-examined the psychologist and the People rested, the trial court allowed defendant to speak. Defendant thereafter rested. The trial court found the allegations of the petition to be true beyond a reasonable doubt and ordered defendants commitment extended pursuant to section 1026.5.

jury trial

A person who has been found not guilty of a crime by reason of insanity may be committed to a mental hospital. When the original term of commitment expires, and the person has not recovered his or her sanity, the prosecution may petition the court to extend that commitment for an additional two years. Section 1026.5, subdivision (b)(1)-(11), establish a procedure for such extensions. The statute provides for the right to jury trial unless waived by both the person and the prosecuting attorney. ( 1026.5, subd. (b)(4).) The section also provides that the person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. ( 1026.5, subd. (b)(7).)

The courts have recognized that proceedings to extend commitment under section 1026.5, subdivision (b), are basically civil in nature. Such extended commitment is for the purpose of treatment of the individual in an environment in which the community is protected while efforts are made to cure the underlying mental illness. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485 (Williams); People v. Angeletakis (1992) 5 Cal.App.4th 963, 968.)

Due to the civil nature of the proceedings and the fact the individual in such cases has already been found to suffer sufficient impairment to be insane, the courts have held that section 1026.5, subdivision (b), does not require all of the criminal constitutional rights be afforded in such proceedings in the same manner as they would be in a criminal case. (Williams, supra, 233 Cal.App.3d at pp. 484-485, 487-488; People v. Juarez (1986) 184 Cal.App.3d 570, 575.)

Cases interpreting similar civil commitment statutes have also found not all criminal law constitutional protections apply to those proceedings. Specifically, in People v. Otis (1999) 70 Cal.App.4th 1174, 1176-1177, the court found that counsel could waive a clients right to jury trial under the mentally disordered offender (MDO) statute. (See also People v. Montoya (2001) 86 Cal.App.4th 825, 829.) A similar result was reached in sexually violent predator (SVP) commitments. (People v. Rowell (2005) 133 Cal.App.4th 447, 451, 454.)

In People v. Powell (2004) 114 Cal.App.4th 1153, 1157-1159 (Powell), the court considered whether section 1026.5, subdivision (b), required the criminal law constitutional protection of personal waiver of the jury trial right in NGI extension proceedings. The court dealt with a case in which defense counsel had waived jury trial over the clients objection. The court reviewed the statute and similar civil commitment systems. It concluded that section 1026.5, subdivision (b), does not require personal waiver of the jury right under this statute. (Powell, supra, at p. 1158; accord, People v. Givan (2007) 156 Cal.App.4th 405, 409 [Conspicuous by omission from section 1026.5 is the Legislatures imposition of any requirement of a personal appearance to waive ones rights].) As the court observed, common sense indicates that the person in each instance will have already been adjudicated as mentally ill to the point of being found not guilty by reason of insanity. Under such conditions, the court reasoned that the tactical decision to seek or waive jury trial should be left to trial counsel and that personal waiver by the client is not necessary. (Ibid.)

Defendant argues that Powell was incorrectly decided. He urges us to take a different view of the statute. We have reviewed the statutory scheme as well as the comparable statutes. We are satisfied the court in Powell correctly analyzed the statute and relevant case law. We agree that the jury trial right in proceedings under section 1026.5, subdivision (b), can be waived by counsel and that personal waiver by the client is not necessary. The client remains protected by the right to competent counsel and the duty of the trial court to assure a fair trial. Interpreting the statute to require a person who has been committed as criminally insane to personally waive the right to jury trial simply does not make sense.

Equally without merit is defendants attempt to bootstrap the statutory right to a jury trial into a constitutional right by claiming a violation of due process. According to defendant, his statutory right to a jury trial was arbitrarily taken away because he was not given the opportunity to be heard before the right was taken away. But a person in defendants position has no right to veto his or her attorneys waiver of the right to trial by jury in a civil extension hearing. (People v. Givan, supra, 156 Cal.App.4th at p. 410.) Such a person therefore needs no opportunity to be heard. (Powell, supra, 114 Cal.App.4th at p. 1159 [NGI-extension-trial jury waiver by counsel does not violate due process]; cf. People v. Montoya, supra, 86 Cal.App.4th at pp. 831-832 [MDO-extension-trial jury waiver by counsel does not implicate due process]; see People v. Givan, supra, at p. 411 [due process is an elusive concept calling for such procedural protections as the particular situation demands and requiring the weighing of the interests of the parties involved; to be workable, it must be plentifully laced with pragmatic consideration].)

equal protection

Defendant argues that the NGI extended commitment scheme violates his right of equal protection under the federal and state Constitutions because it does not require a personal waiver of jury trial. He relies on the Extended Detention Act (EDA), which grants a jury trial right unless personally waived to adult juvenile offenders who are facing an extended detention because, if discharged, they would be physically dangerous because of a mental deficiency, disorder, or abnormality. (See Welf. & Inst. Code, 1801.5.)

The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. [Citation.] The initial inquiry in any equal protection analysis is whether persons are similarly situated for purposes of the law challenged. (In re Lemanuel C. (2007) 41 Cal.4th 33, 47.)

In Lemanuel, an adult juvenile offender contended that the EDA denied him equal protection because it is easier to extend EDAs than their adult counterparts (SVPs and MDOs). The court rejected the claim as follows: The fact that Youth Authority wards committed under [the EDA] and adults committed as SVPs or MDOs are considered dangerous due to mental disorders and therefore are subject to commitment for treatment and the protection of the public does not lead to the conclusion that persons committed under Californias various civil commitment statutes are similarly situated in all respects. They are not. [Citation.] Although [the EDA] is a civil commitment statute, as are the SVPA and the MDOA, the Legislature enacted the adult civil commitment statutes with different purposes in mind than the purpose of the [EDA] extended detention scheme challenged here. (In re Lemanuel C., supra, 41 Cal.4th at p. 48.) It pointed out that the SVP and MDO statutes narrowly target a group of offenders who are labeled based, in part, upon the nature of the underlying conviction while the EDA broadly encompasses all youthful offenders without regard to the nature of the underlying conviction. It concluded as follows: Youth Authority wards are distinctly different from more serious adult offenders who have committed violent or sexually violent crimes. The Legislature may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citation.] [Citation.] As the Court of Appeal in this case appropriately recognized, [t]he mere fact that the Legislature has made it more difficult to commit a more serious, adult offender--especially one who faces the stigma of being declared an SVP [or MDO]--does not give rise to an equal protection violation. (Id. at pp. 48-49.)

Here, the mere fact that EDAs and NGIs are considered dangerous due to mental disorders and subject to extended commitment does not lead to the conclusion that they are similarly situated for purposes of a jury trial waiver. As the People point out, the Legislature might very well have adopted a personal-waiver requirement for EDAs because an EDA is someone whose status as a ward of the juvenile court was determined without a right to jury trial and sufferance of an insanity finding. In contrast, defendant is someone whose NGI status was determined only after having a right to a jury trial and suffering an insanity finding. Defendants equal protection contention therefore fails.

Marsden

Defendant filed a pro. per., pretrial declaration seeking the disqualification of the trial judge, seeking a change of venue, and complaining about defense counsel. In it, he stated that counsel did not want him to present a defense or have a jury trial. In a later pro. per. declaration, he stated that counsel took an overbearing and adversarial stance towards him by telling him that he was not going to get a jury trial and by relying on Powell. He argued in the declaration that Powell was wrongly decided, counsel could not waive his right to jury trial, and the trial court could not accept the waiver. He asked the trial court to appoint another attorney. At trial, the trial court did not acknowledge defendants declarations.

Defendant contends that the trial court erred by denying his request for Marsden relief without a hearing.

In Marsden, the court held that, when a defendant seeks to discharge appointed counsel and substitute another attorney on the ground of inadequate representation, the trial court must allow the defendant to explain the basis for the motion and to relate specific instances of the attorneys deficient performance. The defendant must establish that his counsel is not providing adequate representation or that he or she and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Barnett (1988) 17 Cal.4th 1044, 1085.)

Generally, a trial courts refusal to listen to a defendants reasons for requesting a substitution of counsel does not comport with the standards set forth in Marsden. We there emphasized the need to permit the defendant to enumerate specific instances of inadequate representation, in order to permit a proper exercise of discretion [citation], as well as to afford appellate review [citation]. [] However, the right to the discharge or substitution of court-appointed counsel is not absolute, and is a matter of judicial discretion unless there is a sufficient showing that the defendants right to the assistance of counsel would be substantially impaired if his request was denied. (People v. Clark (1992) 3 Cal.4th 41, 104.)

Here, we are able to afford adequate appellate review because defendant made his point crystal clear in his writings: defendant was dissatisfied with counsel because counsel intended to waive a jury trial. But disputes over tactics are insufficient to justify relieving counsel. (People v. Crandell (1988) 46 Cal.3d 833, 859-860.) In short, defendant fully stated his grievance and it did not provide a basis for a meritorious Marsden motion. Under the circumstances, no hearing was needed. To the extent that defendants complaint can be construed as a disagreement with counsels intended defense (no defense), the complaint is also one about tactics given that defendant fails to demonstrate what meritorious defense counsel failed to offer. (People v. Rodriguez (1977) 73 Cal.App.3d 1023, 1030-1031.) And to the extent that defendants complaint can be construed as a lack of trust in or inability to get along with counsel, the complaint is insufficient to justify relieving counsel. (People v. Memro (1995) 11 Cal.4th 786, 857.)

Even if the trial court did err in its handling of defendants request, the error would not require us to reverse the judgment in this matter.

Although Marsden error is typically reviewed in criminal cases under Chapman v. California (1967) 386 U.S. 18, to determine whether the error was harmless beyond a reasonable doubt (see People v. Marsden, supra, 2 Cal.3d at p. 126), the right to counsel in NGI proceedings is a statutory, not a constitutional right. Therefore, applying the state standard, we will reverse only if it is more probable than not that defendant could have achieved a more favorable result if the trial court had granted his request for new counsel. (People v. Watson (1956) 46 Cal.2d 818, 836; cf. People v. Williams (2003) 110 Cal.App.4th 1577, 1592-1593 [applying Watson review to denial of MDOs right of self-representation].)

As outlined previously, the evidence supporting defendants extended commitment was uncontradicted and defendant offers not one hint that evidence of a meritorious defense existed. Defendant himself lent credence to the supporting evidence when he addressed the trial court. He stated, among other things: I dont believe the people believe I am anti-Christ. They believe that my purpose is not their wish. And people, you know, there have been well over 200 attempts on my life. Later, he added: That was the tainted insulin, and I talked to one person. The other people that werent looking into my face dont believe the rumors about IBM. I dont believe them. In 2004, I was on an open unit. The persecution started again. I started getting meds, giving me headaches and things. People were actually calling me anti-Christ that I had done some sort of sexual deviant fling, much grunting and sniffing, and there was another guy on T-2 in 2005, a friend of mine, wasnt part of the persecution, I said this other guy thinks Im anti-Christ. He called me snake and evil. He said to Steve, do you think he is anti-Christ, and he said, yes. That was a persecution that was being passed at that time. Thus, even if defendant had been appointed a new attorney, the evidence in the record of defendants mental condition does not suggest that different representation would, more likely than not, have led to his release.

assistance of counsel

Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right entitles the defendant not to some bare assistance but rather to effective assistance. (Ibid.)

To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention must be rejected. (People v. Samayoa (1997) 15 Cal.4th 795, 845.)

Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Judicial scrutiny of counsels performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington,supra, 466 U.S. at p. 689.) The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. (Yarborough v. Gentry (2003) 540 U.S. 1, 8.)

An appellate court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed. (Strickland v. Washington, supra, 466 U.S. at p. 697.) Therefore, if the defendant does not show that he or she was prejudiced by the purported deficient performance of counsel, the claim can be rejected without deciding whether counsels performance was actually deficient under the Strickland standard. As to the prejudice prong, [t]he United States Supreme Court [has] explained that this second prong of the Strickland test is not solely one of outcome determination. Instead, the question is whether counsels deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Harris (1993) 5 Cal.4th 813, 833.) A defendant must prove prejudice that is a demonstrable reality, not simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.)

Defendant contends that defense counsel was constitutionally ineffective in three ways.

Defendant first argues that he received ineffective assistance of counsel because his counsel was burdened by a conflict of interest.

Counsel was from the same Public Defenders office as the attorney who had represented defendant in his first extension hearing. In that hearing, the attorney had unsuccessfully argued a motion to dismiss grounded on the Peoples noncompliance with statutory deadlines (the People had filed the petition 19 days before expiration of defendants commitment contrary to a filing requirement of 90 days before expiration and a trial requirement of 30 days before expiration). The attorney had failed to appeal the adverse judgment so as to argue that the trial courts denial of the motion to dismiss transgressed defendants right to due process.

According to defendant, counsel should have moved to dismiss the instant petition on the ground that the prior extension had been obtained by violating his due process rights but counsel did not because [s]he was in a conflicted position to do so, [having] to attack her colleague for being ineffective . . . .

There is no merit to this claim because we presume that counsel decided against moving to dismiss the instant petition due to an irregularity in the prior proceeding because such a motion would be patently unmeritorious. This follows because the prior judgment was final and any attack upon it should have been made via appeal. (Marks v. Superior Court (2002) 27 Cal.4th 176, 188 [a court will not consider claims that could have been raised on appeal but were not].) Even if we were to construe defendants argument as one urging that counsel had a duty and failed to attack the prior judgment via petition for writ of habeas corpus grounded on the prior attorneys ineffective assistance in failing to file a notice of appeal (In re Anthony J. (2004) 117 Cal.App.4th 718), the argument still fails for want of a showing of prejudice. This follows because defendant urges only that there was an arguable issue [on appeal]. This is insufficient to demonstrate prejudice because the question presented in this type of claim is whether it [is] more probable than not that if an appeal had been filed, [the appellate court] would have reversed the judgment. (Id. at p. 727.) Moreover, defendants claim would more probably than not have failed on appeal given that defendant does not show what prejudice resulted from the untimely procedures in the prior extension proceeding. (People v. Mitchell (2005) 127 Cal.App.4th 936, 945-946.)

Defendant second argues that he received ineffective assistance of counsel because his counsel failed to try this case 30 days before expiration of his commitment or move to dismiss for ineffective assistance of counsel grounded on counsels failure to timely try the case.

The People filed the instant petition 57 days before the 30-day deadline. The trial court heard the trial 163 days after the 30-day deadline. According to defendant, there is nothing in the record to justify the 163-day delay.

The short answer to this claim is that defendant fails to make any argument demonstrating prejudice resulting from the untimely trial or unadvanced motion to dismiss. Again, we will reverse only if defendant demonstrates that counsels deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair.

The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 594, p. 627.)

Defendant third argues that he received ineffective assistance of counsel because his counsel failed to subject the Peoples case to meaningful adversarial testing.

Defendant complains that counsel raised no challenge to the prosecutors case, and asked general, and sometimes harmful questions during cross-examination. He also generally urges that counsel did nothing to advocate his rights during her nine-month representation and resurrects his objection to counsels decision to waive a jury trial.

Defendants showing is patently insufficient to demonstrate prejudice from supposed ineffective assistance of counsel. Defendant neither reveals what favorable evidence counsel failed to offer nor explains how the absence of the evidence or presence of sometimes harmful questions rendered the result of the trial unreliable. We again decline to search for error.

disposition

The judgment is affirmed.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Bamattre-Manoukian, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] People v. Marsden (1970) 2 Cal.3d 118 (Marsden) (right to discharge appointed counsel for inadequate representation and substitute another appointed counsel).