P. v. O’Day
Filed 6/12/13 P. v. O’Day CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE
PEOPLE,
Plaintiff and Respondent,
v.
JAMES
ALLEN O’DAY,
Defendant and Appellant.
H038343
(Santa Clara
County
Super. Ct.
No. CC116051)
Defendant
James Allen O’Day appeals the Superior Court’s order extending his
section 1026.5, subdivision (b).
name="_ftnref1" title="">[1] On appeal, defendant claims the trial court
erred by failing to: (1) personally
advise defendant of his statutory right to a jury trial; and (2) obtain
defendant’s personal waiver of that right.
Defendant contends these errors were prejudicial because it is
reasonably probable a result more favorable to defendant would have occurred if
the extension proceeding took place before a jury. For the reasons stated here, we will affirm the
trial court’s order extending defendant’s commitment.
I.
factual and procedural background
Defendant’s
commitment arose from an altercation between defendant and a woman in
2001. After the woman passed him on the
street, defendant grabbed her from behind and threw her down, causing a
three-inch hematoma on the back of her head.
Defendant was drunk at the time of the incident.
The
People charged defendant with felony assault
with a deadly weapon (§ 245, subd. (a)(1)), and an enhancement for causing
great bodily injury (§ 12022.7). After
being found not guilty by reason of insanity, the trial court committed
defendant to Atascadero State Hospital
to sections 1026 and 1026.5.
In
January 2012, the People petitioned to extend defendant’s commitment under
section 1026.5, subdivision (b). At a
status conference in April 2012, defendant’s court-appointed counsel stated it
was defendant’s “desire†to waive his right to a jury trial. Based on that representation, the trial court
conducted a bench trial in May 2012, where the court heard testimony from
defendant as well as defendant’s treating psychologist, Nina Woods, Ph.D.
Woods
testified she had been defendant’s treating psychologist for three and one-half
years at the time of the trial.
According to Woods, defendant is diagnosed with schizoaffective disorder
(bipolar-type), polysubstance dependence, and borderline intellectual
functioning. During her testimony, Woods
identified areas in which defendant had made positive progress, including:
attending and positively participating in group sessions; taking medication;
indicating willingness to go to a mental health center if released; decreased
statements of desire for alcohol; and decreased pressuring of peers for items
such as money. Despite this positive
progress, Woods nonetheless opined that defendant was not prepared for release.
As
support for her recommendation to extend defendant’s commitment, Woods pointed
to several remaining concerns. She noted
defendant “continues to have pressured speech, distractibility, problems with
impulse control, some problems with impaired judgment, and he is quickly
angered.†Woods was also concerned that,
although defendant can identify his diagnosis by name, he does not appear to
understand what the diagnosis means.
Because he fails to understand his conditions and the need for
medication to keep them under control, Woods lacked confidence that defendant
would take his medication if released and feared he might turn to alcohol and
street drugs instead. Her concern was
increased because defendant refused to create a wellness and recovery plan and
lacked a community support group who might help him with his recovery. Woods expressed doubt that defendant could
take the right steps on his own to find a mental health center, arrange
transportation there (both for appointments and to pick up prescriptions), pay
for the medication, and take the medication.
Based on these concerns, Woods concluded it was “very likely†defendant
would be violent if released.
Defendant
briefly testified on his own behalf. He
stated that, if released, he would continue taking his medications, would not
use alcohol or street drugs, and was willing to create and comply with a
wellness plan. The trial court
ultimately sustained the petition and extended defendant’s commitment for an
additional two years, finding the People proved beyond a reasonable doubt that
defendant continued to present a substantial danger of harm to others by reason
of a mental disease, defect,
or disorder.
II.
discussion
Defendant
claims the trial court erred by failing to:
(1) obtain defendant’s personal waiver of his
1026.5, subd. (b)(4)); and (2) personally advise defendant of that right (§
1026.5, subd. (b)(3)). Defendant asserts
that these errors were prejudicial because it is reasonably probable he would have
obtained a more favorable result before a jury.
The People counter that defendant forfeited these claims by failing to
object below and, alternatively, that defendant’s claims lack merit.
A.
Forfeiture
The
People urge that defendant forfeited his arguments regarding section 1026.5
because they were not raised below.
“Ordinarily, an appellate court will not consider a claim of error if an
objection could have been, but was not, made in the lower court.†(
46.) However, this general rule is not
automatic and appellate courts have discretion to review otherwise forfeited
legal challenges “in cases presenting an important legal issue.†(In re
S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute as recognized in
962.)
Defendant
offered no counterargument in his reply brief, and we find no evidence in the
record suggesting defendant objected regarding his
counter the People’s argument on this point, we decline to find a forfeiture in
this context because the right to a jury trial is an important legal
issue. Application of the general rule
here would always preclude the issue unless defendants personally took the
affirmative step of disagreeing with their attorneys and voicing their concerns
in open court. Such a result seems
unfair to defendants, particularly those whose mental state is at issue in the
proceeding, as well as those who are unfamiliar with
governing trial. Thus, because this case
presents an important legal issue, we exercise our discretion and will consider
defendant’s section 1026.5 arguments.
B.
Statutory Right to Jury Trial (Section 1026.5,
Subdivision (b)(4))
Defendant
claims the trial court should have provided a jury trial unless it obtained a
personal waiver from defendant, citing section 1026.5, subdivision (b)(4). That subdivision states that commitment
extension trials for individuals previously found not guilty by reason of
insanity (NGI’s) shall be by jury “unless waived by both the person and the
prosecuting attorney.†(§ 1026.5, subd.
(b)(4).)
Turning
to the text of section 1026.5, subdivision (b)(4), the language requiring
waiver by “the person†is ambiguous.
Comparison with other laws requiring express personal waiver of rights,
however, supports the conclusion that waiver of a jury in this context can be
made by an attorney on an NGI’s behalf.
For example, article I, section 16 of the California Constitution states
that waiver of a jury in a criminal case can only occur “by the consent of both
parties expressed in open court by the defendant and the defendant’s counsel.â€
(Cal. Const., art. I, § 16, italics added.) By separately requiring consent from the
defendant and the defendant’s counsel, the constitutional provision makes clear
the need for personal waiver by the defendant.
Similarly, Welfare and Institutions Code section 1801.5, governing
extended detention of juveniles who are physically dangerous to the public due
to a “physical deficiency, disorder, or abnormality,†calls for a jury trial
“unless the right to a jury trial is personally
waived by the person . . . .†(Welf.
& Inst. Code, § 1801.5, italics added.)
Like the constitutional provision, there is no doubt that waiver in the
juvenile commitment context must be made personally. Other California laws that explicitly require
a personal waiver include section 861, subdivision (a)(1) (preliminary
examination in criminal cases to be completed in a single session or within 10
court days unless “defendant personally waives his or her right to a continuous
preliminary examinationâ€), and section 977, subdivision (b)(1) (mandating
defendant’s presence at all pretrial proceedings in felony criminal cases
unless defendant “execute[s] in open court, a written waiver of his or her
right to be personally presentâ€).
The
foregoing laws show that legislators are capable of explicitly requiring
personal waivers when that is their intention.
(Cf. People v. Otis (1999) 70
Cal.App.4th 1174, 1176 [analyzing analogous waiver language in § 2966, subd.
(b) regarding commitment of mentally disordered offenders: “[h]ad the Legislature
intended that waiver could only be made personally by the petitioner, the
Legislature would have made its intent clearâ€].)
Further
support for an interpretation allowing waiver of a jury trial by counsel is
found in People v. Powell (2004) 114
Cal.App.4th 1153 (Powell). In Powell,
defense counsel waived a jury for an NGI commitment extension proceeding over
the objection of his NGI client. (
counsel’s waiver satisfied section 1026.5, subdivision (b)(4). (Powell,
supra, at p. 1158.) In so holding,
the court compared the jury trial right in section 1026.5, subdivision (b)(4)
to the right to a jury in commitment extension proceedings involving mentally
disordered offenders (MDO’s). The court
looked to section 2966, subdivision (b), which guarantees a jury trial “unless
waived by both the person and the district attorney,†noted the similarity
between the waiver provisions in sections 2966 and 1026.5, and explained that
neither waiver provision contained an explicit requirement of personal waiver
of the right to a jury trial. (
interpreting section 2966, subdivision (b), to allow waiver through
counsel. (Powell, supra, at p. 1159 [discussing
Otis, supra, 70 Cal.App.4th 1174, 1177].)
Based on the statutory language of section 1026.5, as well as
analogous MDO statute, the Powell
court concluded that section 1026.5, subdivision (b)(4) allows an attorney to
waive a jury trial on behalf of an NGI client.
(Powell, supra, at p. 1159.)
Based
on the foregoing, we conclude that the language of section 1026.5, subdivision
(b)(4), prescribing that a waiver be made by “the person,†does not require an
express, personal waiver of the right to a jury trial from an NGI facing a
commitment extension petition. We note
that in this case we need not decide whether the provision permits an attorney
to waive a jury trial over the objection of an NGI client. Here, defendant’s counsel informed the trial
court on the record that it was defendant’s
desire to waive jury. Because counsel’s
waiver was apparently a reflection of defendant’s wishes, and because section
1026.5, subdivision (b)(4) does not require a personal waiver from defendant,
we find the waiver in this case was adequate.
C.
Jury Trial Advisement (Section 1026.5, Subdivision
(b)(3))
Defendant
asserts that section 1026.5, subdivision (b)(3), which states “the court shall
advise the person named in the petition of the right to be represented by an
attorney and of the right to a jury trial,â€
requires the trial court to advise defendant personally of his right to a jury
trial. Unlike the language of section 1026.5,
subdivision (b)(4), discussed previously, subdivision (b)(3) refers to advising
“the person named in the petition†of
these rights. (§ 1026.5, subd. (b)(3),
italics added.)
Given
the reference in section 1026.5, subdivision (b)(3) to both the right to
counsel and the right to a jury trial, the statute contemplates that an NGI
would not necessarily have counsel at the commencement of proceedings on a
petition for extended commitment. Here,
however, defendant was already represented by counsel, who conveyed to the
court defendant’s desire to waive jury.
Although the general rule in both civil and criminal cases is that “a party’s attorney has
general authority to control the procedural aspects of the litigation and,
indeed, to bind the client in these matters†(In re Horton (1991) 54 Cal.3d 82, 94), this court has recently
addressed the scope of the attorney’s authority in this context and concluded
section 1026.5, subdivision (b)(3) requires a personal advisement. (People
v. Tran (2013) 216 Cal.App.4th 102, 112.)
Rules of
Professional Conduct, rule 3-500 requires attorneys to keep clients “reasonably
informed about significant developments related to the . . . representation . .
. .†(State Bar Rules Prof. Conduct,
rule 3-500.) The existence of the right
to a jury trial is certainly a significant development related to the case
covered by rule 3-500. In light of the
Rules of Professional Conduct, as well as other laws governing the practice of
law in California,
title="">[3]
there is little risk that allowing an attorney to appear for an NGI for
purposes of an advisement of rights would prevent an NGI from learning of the
right to a jury trial. Nonetheless,
because of the mandatory language in section 1026.5, subdivision (b)(3), the
record should reflect the NGI’s personal advisement by the court, even if the
earliest opportunity for advisement is the day of trial.
advisement at any point in the proceedings.
An error
based on the absence of the personal advisement will not result in reversal,
however, unless it is “reasonably probable that a result more favorable to
[defendant] would have been reached in the absence of error.†(People
v. Watson (1956) 46 Cal.2d 818, 836.)
We find no reasonable probability here.
Defendant’s desire to waive jury, conveyed through counsel and not
contradicted by any evidence in the record, presupposes defendant’s knowledge
of his right to a jury trial. Because
defendant apparently knew about the jury trial right, the purpose of the
advisement mandated by section 1026.5, subdivision (b)(3) was satisfied, even
if the trial court failed to advise defendant personally. For this reason, we determine the error to be
harmless. (See Tran, supra, 216
Cal.App.4th at p. 113 [finding no prejudice when record suggested the defendant
was aware of right to jury trial despite trial court’s failure to advise].)
III.
Disposition
For
the foregoing reasons, the trial court’s order extending defendant’s commitment
is affirmed.
____________________________________
Grover,
J.
I
CONCUR:
____________________________
Premo,
Acting P.J.
I
CONCUR IN THE JUDGMENT ONLY:
____________________________
Mihara,
J.
Penal Code.
where he currently resides.
