P. v. Nickaloff

Filed 2/9/09 P. v. Nickaloff 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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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After defendant Nathan Joseph Nickaloff waived his right to a jury trial on the Peoples petition to extend his commitment as a mentally disordered offender (MDO) (Pen. Code, 2960, et seq.), the trial court sustained the petition and committed defendant to the California Department of Mental Health for another year, effective March 10, 2008.

On appeal, defendant contends the trial court erred in accepting a waiver of trial rights from an extremely delusional and disorganized defendant whose mental state was in dispute, without determining whether the waiver was knowing, intelligent, and voluntary. He also complains the court appears to have treated the waiver as a stipulation for an extension, [although] that is not what it was. Rather, it was an agreement that the matter would be submitted to the court, without jury, upon the reports of the doctors. Defendant further suggests the court found him to be an MDO without reviewing the reports and, thus, the judgment must be reversed because we can only speculate as to what the result might have been had there been a trial.

Finding that defendants contentions lack merit, we shall affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

In 1995, defendant pled no contest to assault with a deadly weapon and was placed on probation. In 1996, he violated his probation, was found mentally incompetent and unable to understand the nature of the criminal proceedings or to assist his counsel (Pen. Code,  1367, subd. (a)), and was committed to a state hospital for the care and treatment of the mentally disordered. After defendant regained mental competence (Pen. Code,  1372, subd. (a)(1)), his probation was revoked and, on February 20, 1997, the trial court sentenced him to a term of two years in state prison for the assault with a deadly weapon conviction.

In 2000, the People successfully petitioned to have defendant declared an MDO, and the People filed successful petitions to have his commitment extended each year since then, based on regularly updated psychiatric reports. (Pen. Code,  2970, 2972, subd. (c); People v. May (2007) 155 Cal.App.4th 350, 358 [after completing a term in state prison, a person may be committed involuntarily as an MDO for a period of one year; petitions to extend the commitment for additional one-year terms may be filed indefinitely, so long as the persons severe mental disorder is not in remission and causes the person to represent a substantial danger of physical harm to others].)

In October 2007, the People petitioned for another extension of defendants MDO commitment, alleging that the treatment staff at Napa State Hospital had determined that [defendant] continues to suffer from a severe mental disorder that is not in remission, or cannot be kept in remission, without continued treatment and that he thereby represent[ed] a substantial danger of physical harm to others. Attached to the petition were (1) a letter from the acting director of the hospital stating there was good cause to believe that defendant by reason of his severe mental disorder qualifies for continued treatment [as an MDO]; and (2) a current report by doctors detailing defendants long history of schizophrenia and paranoid delusions that led him to commit violent assaults.

Attorney Michael Aye, who had represented defendant in prior MDO proceedings, was appointed to represent him again. In the past, defendant had asked to be represented by Aye because, in defendants words, his performance is good, he is a hard worker, I honor him, and he seen [sic] me, he took a likin too [sic] me . . . .

Defendant, who had waived his right to jury trials in the prior MDO proceedings, once again waived his right to a jury trial on the allegations of the new petition. Attorney Aye filed a Waiver of Appearance and Agreement to Submit Case on Doctors Recommendation, signed by defendant, stating: I, NATHAN J. NICKALOFF, respondent herein, having been fully advised by my attorney, Michael J. Aye, of my rights to a trial and to be present in court for all proceedings do hereby waive my rights to be present at trial and ask the court to proceed outside of my presence. [] I further understand and agree that this matter shall be submitted to the court, without jury, upon the reports of the doctors and that my attorney will not have an opportunity to cross-examine those doctors. I realize that this will most likely result in my be[ing] committed to the state hospital for another year from the date my present commitment is due to expire.

Defendants waiver of his rights to a jury trial, to confront the evidence against him, and to be present at the hearing was signed on February 5, 2008. The hearing was held on February 29, 2008. Consistent with his waiver, the minute order of the hearing reflects defendant did not attend the proceeding. The reporters transcript of the hearing is brief, stating simply: THE COURT: Nathan Nickaloff, Jr., 95F05183. [] MR. AYE: Michael Aye for Mr. Nickaloff. Mr. [Rich] Curry is the District Attorney on this. Hes run back to the office to get an order. Here is a waiver that Mr. Nickaloff signed. [] THE COURT: What does Mr. Curry want? [] MR. AYE: Mr. Curry went to get the order to extend him. [] THE COURT: All right. One year extension. Ill sign the order when he gets here. [] Okay.

The courts written order, signed on February 29, 2008, states: IT IS ORDERED that NATHAN JOSEPH NICKALOFFS period of commitment to the State Department of Mental Health be extended for one (1) year, effective the 10th day of March 2008, pursuant to the provision of  2972 of the Penal Code and that said person be returned forthwith to Napa State Hospital by the Sacramento Sheriffs Transportation Division. Mr. Nickaloffs maximum commitment date would then be March 10, 2009.

DISCUSSION

I

Defendant contends the court erred in accepting his written waiver of a jury trial without ascertaining from him that it was knowing, intelligent, and voluntary. In defendants view, the judge was required to have him present in court and to conduct an on-the-record determination that he [was] capable of doing so intelligently, knowingly, and voluntarily. We are not persuaded.

An MDO hearing is a civil proceeding. (Pen. Code, 2972, subd. (a) [the hearing on the petition under Section 2970 for continued treatment as an MDO shall be a civil hearing]; People v. Montoya (2001) 86 Cal.App.4th 825, 830.) Thus, the requirement in criminal cases that a defendant personally waive the right to a jury trial does not apply; the right may be waived by defense counsel on behalf of the defendant. (People v. Montoya, supra, 86 Cal.App.4th at p. 830.) Indeed, defense counsel may waive the statutory right to jury trial in an MDO proceeding even over the defendants objection. (People v. Otis (1999) 70 Cal.App.4th 1174, 1175, 1176-1177 (hereafter Otis); accord, People v. Montoya, supra, 86 Cal.App.4th at pp. 830-831.)

In arguing otherwise, defendant contends [w]here the basic issue in the proceeding is the defendants mental disorder, there is built-in doubt about his ability to make a valid waiver. Thus, relying on dictum in Conservatorship of Chambers (1977) 71 Cal.App.3d 277 (hereafter Chambers), defendant suggests the judge should have consulted with him to determine whether he was competent to knowingly and intelligently waive his right to a jury trial. We conclude otherwise.

Chambers involved a conservatorship proceeding under the Lanterman-Petris-Short Act (LPS) (Welf. & Inst. Code, 5000 et seq.) for a person who was gravely disabled as a result of a mental disorder. (Chambers, supra, 71 Cal.App.3d at p. 279.) The conservatee claimed that his waiver of a jury trial was not adequate absent an on-the-record voir dire as to each of the due process protections he surrendered. (Id. at p. 285.) Although a statute requiring the trial court to advise proposed conservatees about the nature and purpose of the proceeding was enacted after the proceeding at issue in Chambers, the appellate court held the statute was not retroactive (id. at p. 286) and ruled that because defense counsel was present when the right to jury trial was waived, a voluntary and intelligent waiver of known rights may properly be inferred from the record, without a specific on-the-record showing as to each right. (Id. at p. 287.) In dictum, Chambers went on to say that because a proposed conservatee may be unable to understand the effect of a waiver on his basic rights . . . proceedings of this kind should be scrutinized to ascertain at the outset whether the proposed conservatee had sufficient understanding of the situation in order to make an intelligent, knowing and voluntary waiver. (Id. at p. 288; but see Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 271-272 [an on-the-record personal waiver of a jury trial is not required from the proposed conservatee; counsel may validly waive [that right] and courts will presume that counsel fully communicat[ed] with the proposed conservatee [about the right to a jury trial]].)

We see no reason to apply the Chambers dictum to special civil proceedings in MDO cases. As was pointed out in Otis, when it enacted the statutory scheme for MDO cases, which Otis construed as permitting defense counsel to waive the defendants statutory right to a jury trial, even over defendants objection, the Legislature must have contemplated that many persons, such as Otis, 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. (Otis, supra, 70 Cal.App.4th at p. 1177; accord, People v. Montoya, supra, 86 Cal.App.4th at pp. 830-832; see People v. Masterson (1994)8 Cal.4th 965, 971 [defense counsel may waive the defendants statutory right to jury trial in a competency proceeding (Pen. Code,  1368 et seq.) where the defendants capacity to make such decisions is in doubt]; see also People v. Rowell (2005) 133 Cal.App.4th 447, 451-454, [a defendants personal waiver of a jury trial in [a sexually violent predator] proceeding [Welf. & Inst. Code,  6600 et seq.] is not required, and the trial court properly accepted defense counsels declaration that defendant wanted a court trial].)

In sum, the trial court did not err in accepting the waiver of jury trial and defendants presence during the MDO proceeding without bringing him into court and examining him to determine whether he was competent to waive those rights.

In any event, we presume defense counsel acted competently in conferring with defendant and ascertaining he had the capacity to knowingly, intelligently, and voluntarily waive his right to a jury trial. (Conservatorship of Mary K., supra, 234 Cal.App.3d at p. 272.) Therefore, we reject his appellate counsels premise that defendant was too extremely delusional and disorganized to do so. It is true the mental health report attached to the MDO petition opined that (1) defendant continued to display active psychosis, including disorganized and delusional thinking, with respect to ongoing beliefs of romantic involvement with a woman and ongoing false beliefs regarding his discharge from mental health treatment and custody, and (2) his thought processes were disorganized and incoherent at times so he often had great difficulty in the tracking of topics being discussed [in his treatment as an MDO]. But defendants difficulty in understanding and addressing the basis for his commitment as an MDO did not necessarily show his inability to understand and waive his right to a jury trial. In other words, nothing in the record undermines the presumption that his defense counsel competently determined defendant had the capacity to knowingly, intelligently, and voluntarily waive his right to a jury trial. (Conservatorship of Mary K., supra, 234 Cal.App.3d at p. 272.)

II

Without setting it forth under a separate heading as required by Rule 8.204(a)(1)(B) of the California Rules of Court (see Teachers Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1038, fn. 6 [the failure to place a separate issue under a separate heading may result in a forfeiture of the issue]), defendant raises another claim of error.

He contends (1) it appear[s] that his waiver of a jury trial and his submission of the matter on the doctors report, with the understanding that this would most likely result in his being committed for another year as an MDO, was treat[ed] [by the trial court] as a stipulation for an extension [of his MDO commitment], and (2) it further appears that the court found him to be an MDO without reviewing the report. It follows, he argues, the judgment must be reversed because we can only speculate as to what the result might have been had there been a trial.

Defendant has failed to affirmatively show error.

Under the circumstances presented in this case, we presume the trial judge regularly performed his official duty. (Evid. Code,  664.) Therefore, absent an affirmative showing to the contrary, we engage in the following presumptions: (1) when defense counsel presented to the judge defendants written jury trial waiver and agreement to submit the matter on the doctors report, without defendant or the doctors being present and subject to examination, the judge had before him the pleadings, which included the report of the doctors; (2) the judge understood the plain, unambiguous meaning of the waiver not as a stipulation for extended commitment but as an agreement to a court trial based solely on the doctors report, with the understanding that the judge would likely extend the MDO commitment because the doctors report unequivocally opined that defendants mental state satisfied the elements for an MDO extended commitment; and (3) the judge read the report of the doctors prior to ruling: All right. One year extension. Ill sign the order when he [the prosecutor] gets here.

Defendant suggests otherwise. Due to the brevity of the reporters transcript of the hearing, he makes the assumption that the judge must not have read the doctors report before extending the MDO commitment. Thus, defendant assumes, the judge must have treated his waiver as a stipulation to extend his MDO commitment. Such assumptions do not constitute an affirmative showing of error.

The problem with defendants assumptions, which are contrary to the presumptions required by Evidence Code section 664, is that they overlook that a reporters transcript does not reflect the period of time that transpires between one statement and the next. Absent an affirmative showing otherwise, we must presume that after defense counsel told the judge that the prosecutor went to get an order to extend defendants MDO commitment (in light of defendants jury trial waiver and agreement to submit the matter for a court trial based solely on the doctors report, with the understanding the judge would most likely find defendant must be committed for another year), the judge read the doctors report (which was before him as part of the pleadings) and found it supported the petition (as was readily apparent to both parties to the MDO proceeding, and is readily apparent to us) and only then pronounced judgment. Nothing in the record demonstrates otherwise, as reflected by the absence of an objection by defense counsel (if the judge had not read the report before ruling, defense counsel surely would have objected). Another likely scenario is the judge read the doctors report prior to going on the record. It is common practice for a judge, immediately prior to the commencement of a hearing, to meet with counsel in chambers to ascertain the parties intentions. From the brevity and content of the reporters transcript, we can infer the judge did so in this case and read the doctors report then after ascertaining that counsel intended to submit the matter on the report.

Because we must presume the trial judge performed his required duties, and defendant has not shown otherwise, we reject his claim of error.

DISPOSITION

The judgment is affirmed.

SCOTLAND , P. J.

We concur:

HULL , J.

BUTZ , J.

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