P. v. Luna



























Filed 3/1/13 P. v. Luna CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




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THE PEOPLE, Plaintiff and Respondent, v. BELLO LEE LUNA, Defendant and Appellant.

H037527 (Santa Clara County Super. Ct. No. 171019)

Defendant
Bello Lee Luna challenges the trial court’s order extending his commitment as a
mentally disordered offender
(MDO). He contends that the trial court
prejudicially erred in failing to advise him of his right to a jury trial and
obtain his personal waiver of that right.
We affirm.



I. Background

A petition
to extend Luna’s commitment was filed in June 2011. Luna had suffered prior convictions for
criminal threats and false imprisonment, and he originally had been committed
as an MDO in 1995. His commitment had
been repeatedly extended since then.
Luna was not present at the first hearing on the petition on June 15, 2011, but he was represented
by counsel. The same was true at three
subsequent hearings in June and July.


Luna also
was not present at a hearing on August
19, 2011. The following
colloquy occurred at the August hearing.
“THE COURT:
. . . And it’s my understanding the respondent is
asking for a trial. He’s waiving jury;
correct? [¶] MR. SHARKEY [Luna’s counsel]: That’s right, Your Honor.” The prosecutor also waived jury trial. The trial was set for October 24.

Luna was
present at the October 24, 2011
trial. At the outset, the court stated
that “this is an agreed-upon court trial for extension of his MDO status, I
believe.” The prosecutor confirmed as
much, and Luna’s trial counsel affirmed that he was ready to proceed. Luna said nothing.

The sole
witness at the trial was Dr. Mendel Feldsher.
Feldsher, a psychiatrist, testified as an expert on diagnosis and
treatment of mental disorders and on risk assessment. Luna’s trial counsel did not challenge
Feldsher’s expertise.

Feldsher
testified that he had interviewed Luna, reviewed his records, and consulted
with Luna’s current treating psychiatrist.
In his expert opinion, Luna posed “a substantial risk of physical harm
to others by reason of his severe mental disorder.” Feldsher found the “most consistent”
diagnosis to be that Luna was a paranoid schizophrenic. Although Luna had also been previously diagnosed
with schizoaffective disorder bipolar type, Feldsher found no evidence in
Luna’s records of “a discrete manic episode or depressive episode” even though
there was evidence that Luna had experienced “some significant depressive
symptoms.” While schizoaffective
disorder might also be an appropriate diagnosis, Feldsher simply did not find
enough evidence in the records to support that diagnosis at this time.

Feldsher
explained the basis for his opinion that Luna posed a substantial risk of
physical harm to others. Luna
experienced “paranoid delusional beliefs.”
Luna told Feldsher that Luna was “being held hostage” by hospital staff
to “make money” for the state. Luna also
told Feldsher “that I should be scared for my wife and for myself if I were to
be involved in -- as an agent against him is how he described it.” Luna had previously made threats to three
other psychiatrists at Napa State Hospital.


Luna’s
underlying convictions were based on a threat to the life of a social worker
and the commission of an attempted rape at knifepoint. He also had a significant criminal history as
a juvenile when he had been found carrying a concealed weapon on four
occasions. He had also been convicted of
stabbing a man in the abdomen in a bar.
Feldsher found the recurring theme of stabbing people with knives
particularly troubling. This was
especially true in light of the fact that Luna had been found in possession of
two shanks in November 2010 at Napa State Hospital, and he had stated at the
time that he wanted “to kill somebody.”
In January 2011, Luna threatened to stab his psychiatrist, and he was
again found in possession of two shanks.
In August 2011, Luna was observed “in a fighting stance with another
peer and he told staff ‘I’m going to get him.’
”

Luna was
subject to an involuntary
medication order, and he told Feldsher that he believed he did not need
psychiatric medications “whatsoever.” He
also did not believe that he suffered from a mental disorder. He had “no insight whatsoever.” Luna refused to participate in any treatment,
refused “lab draws,” and sometimes refused to shower. Luna was not willing to consider
“cooperat[ing] with CONREP.”

Luna’s
trial counsel’s brief cross-examination attempted to show that Feldsher had
only a limited knowledge of Luna based solely on a single interview of Luna,
reports, and consultation with Luna’s current treating psychiatrist, who had
been treating Luna for only a short time.


The entire
trial lasted 23 minutes. Both attorneys
submitted the matter without argument.
The court found the petition true and ordered Luna’s commitment extended
for one year. Luna timely filed a href="http://www.fearnotlaw.com/">notice of appeal.







>II.
Analysis

Luna’s sole
appellate contention is that the trial court prejudicially erred in failing to
advise him of his statutory right to a jury trial and obtain a personal waiver
of that right.

“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 trial shall be by jury unless waived by
both the person and the district attorney.”
(Pen. Code, § 2972, subd. (a).)
“If the court or jury finds that the patient has a severe mental
disorder, that the patient’s severe mental disorder is not in remission or
cannot be kept in remission without treatment, and that by reason of his or her
severe mental disorder, the patient represents a substantial danger of physical
harm to others, the court shall order the patient
recommitted . . . .”
(Pen. Code, § 2972, subd. (c).)

The record
before us does not establish that the trial court complied with its statutory
obligation to advise Luna of his right to a jury trial or that it obtained his
personal waiver of that right.
Nevertheless, Luna cannot establish that reversal of the court’s order
is required.

Even if we
assume that Luna personally would not have waived his right to a jury trial if
he had been advised by the court of that right, a doubtful proposition, this
right is purely statutory. (>People v. Cosgrove (2002) 100
Cal.App.4th 1266, 1276 (Cosgrove).) Consequently, the applicable standard of
harmless error review is “whether it is reasonably probable that a result more
favorable to defendant would have been reached absent the error.” (Ibid.) Where the evidence supporting the order is
overwhelming, this standard cannot be satisfied. (Ibid.) Luna acknowledges that this is the
appropriate standard, and he makes no attempt to distinguish >Cosgrove, where the deprivation of a
jury trial was found harmless. (>Ibid.)

Here, the
evidence presented at trial was so overwhelming that it is inconceivable that a
jury would have reached a result more favorable to Luna. Feldsher’s testimony was unrebutted, and it
established beyond any doubt that Luna suffers from a severe mental disorder
that is not in remission. Luna is a
paranoid schizophrenic who may also suffer from schizoaffective disorder. He denies that he has a mental illness,
denies that he requires medication, and takes medication only due to a court
order. Even with medication, he suffers
from delusions and continues to threaten violence against his peers, staff, and
particularly psychiatrists. He
indisputably poses a substantial danger of physical harm to others. Although he is confined in a state hospital,
he has repeatedly obtained deadly weapons and made threats to use them to kill
others. Based on this evidence, no jury
could have concluded other than that Luna is severely mentally ill and poses a
very high danger of physical harm to others.
It follows that the absence of a jury trial advisement and personal
waiver did not prejudice Luna.

Luna
contends that the failure to advise and obtain a personal waiver deprived him
of due process. He relies on >In re Gary W. (1971) 5 Cal.3d 296 (>Gary W.). Gary W.
involved an extension of a ward’s youth authority commitment due to his
dangerousness. The ward contended that
he was entitled under due process and equal protection to a jury trial on the
commitment petition. (>Gary W., at p. 303.) The crux of his contention was that there was
no adequate basis for distinguishing dangerous wards from mentally disordered
sex offenders (MDSOs), narcotics addicts, and “dangerous persons” with respect
to the jury trial right. (>Gary W., at pp. 303-304.) The California Supreme Court agreed and found
that there was no compelling justification for distinguishing between these
various prospective civil committees with respect to the fundamental jury trial
right. Since the others were granted a
statutory right to a jury trial, wards too were entitled to such a right as a
matter of equal protection. (>Gary W., at pp. 305-307.) Gary W.
has no application here. Luna’s right to
equal protection was not abridged because he, like other prospective civil
committees, had a statutory right to a
jury trial. Gary W. said nothing about the appropriate error standard to apply
in such cases. Luna’s reliance on >People v. Burnick (1975) 14 Cal.3d 306 (>Burnick) is also misplaced. Burnick
was an MDSO case. The court held that
due process required proof beyond a reasonable doubt. (Burnick,
at pp. 314, 318.) No issue was raised
regarding the right to a jury trial, as that right was statutorily
provided. Nor can Luna establish an
equal protection violation, as he, like other prospective civil committees, has
a statutory right to a jury trial. No
distinction was drawn against him.

Luna was
not prejudiced by the trial court’s failure to advise him of his right to a
jury trial or to obtain a personal waiver of that right.



III. Disposition

The order
is affirmed.











_______________________________

Mihara,
J.







WE CONCUR:







_____________________________

Premo,
Acting P. J.







_____________________________

Márquez,
J.