>P. v. >Shelton>

 

 

 

 

 

 

 

 

 

 

Filed 9/12/13  P. v. Shelton CA1/5

 

 

 

 

 

 

NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

 

FIRST APPELLATE DISTRICT

 

DIVISION FIVE

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. SCOTT PATRICK SHELTON,             Defendant and Appellant.

A137532         (Sonoma County       Super. Ct. No. SCR-450976)

 

            Appellant
Scott Patrick Shelton was previously found not guilty by reason of
insanity.  He appeals an order imposing a
two-year extension of his commitment to Napa State Hospital (NSH) pursuant to
Penal Code section 1026.5, subdivision (b).href="#_ftn1" name="_ftnref1" title="">[1]  Shelton
contends that his defense counsel’s waiver of jury trial on the extension
petition was invalid.  We affirm.

I.          Factual and Procedural Background

            On
December 23, 2004, Shelton
entered a plea of not guilty by reason of insanity (NGI) to two counts of href="http://www.mcmillanlaw.com/">assault on a peace officer.  Pursuant to section 1026, he was committed to
NSH for a maximum term of six years four months with credit for time served.

            On
August 26, 2010, the People
petitioned to extend Shelton’s
commitment pursuant to section 1026.5, subdivision (b).  Following defense counsel’s waiver of a jury
trial on the petition, over Shelton’s
objection, the court found the People’s extension petition had been proved
beyond a reasonable doubt, and ordered Shelton’s
commitment extended until February 7,
2013.  We affirmed that
extension order in an unpublished opinion. 
(People v. >Shelton (Oct. 19, 2011, A130923) [nonpub.
opn.].)

            On
July 18, 2012, the People
again petitioned to extend Shelton’s
commitment pursuant to section 1026.5, subdivision (b).  Defense counsel again waived, over Shelton’s
objection, a jury trial.  At the outset
of Shelton’s extension proceedings,
the following colloquy occurred:

            “THE
COURT: . . . He’s willing to waive jury and have this as a court
trial.

            “[DEFENSE
COUNSEL]:  I’m willing to waive jury on
his behalf.

            “THE
COURT:  On his behalf.

            “THE
DEFENDANT:  Sir.

            “THE
COURT:  Is that correct?

            “[DEFENSE
COUNSEL]:  Yes.

            “THE
COURT:  And the People willing to waive
jury?

            “[PROSECUTOR]:  Yes.

            “THE
DEFENDANT:  No, sir.  I would like to be able to have a jury.  Last time I was in court, I didn’t have a
jury.  I appreciate if I can disbar—not
disbar, but dismiss my lawyer, if she’s recommending that I don’t have a
. . . jury trial, because I like to have one.

            “THE
COURT:  Okay.  Have you met and discussed the various
aspects of this case with him?

            “[DEFENSE
COUNSEL]:  I’ve actually represented Mr.
Shelton on a number of occasions, including attempted jury trial about four
years back.

            “Based
upon his report from [NSH], I had the right to and power to waive jury over his
objection.

            “THE
COURT:  You feel it’s in his best
interests to do that?

            “[DEFENSE
COUNSEL]:  Well, I think, yes,
everybody’s best interests.”

            A
court trial was held.

            A
June 11, 2012 extension
report by NSH psychologist Benjamin Rose opined that Shelton
should be considered for an extension of his NSH commitment because “he has a
severe mental illness [and] continues to represent a substantial danger to
others.”  The report stated that Shelton
had been diagnosed with schizoaffective disorder, bipolar type; amphetamine dependence;
and antisocial personality disorder.  Shelton’s
schizoaffective disorder is manifested by a history of hallucinations and mood
cycling.  His methamphetamine dependence
is manifested by an extensive history of methamphetamine abuse since adolescence.  His antisocial personality disorder is
manifested by “a pervasive pattern of disregard for and violation of the rights
of others” and a history of arson.

            In
concluding that Shelton has severe mental illness and continues to represent a
substantial danger to others, the extension report noted that he “has a history
of violence and is refusing many aspects of treatment.  He has had many episodes of verbal
aggression, and at times physical aggression, in the past year.”  Specifically, the following aggressive acts,
among others, were noted: (1) On January 4, 2011, Shelton spit on his peers;
(2) On July 14, 2011, Shelton verbally threatened staff members when he
believed they were putting hair in his food. 
When NSH police intervened, Shelton swung his fist at a staff member;
(3) On December 26, 2011, Shelton refused his medication after cursing,
threatening, and pacing the hallway; (4) On January 30, 2012, Shelton punched
another individual in the head; (5) On May 15, 2012, Shelton told a nurse, “I’m
going to kill you mother fucker,” as he raised a clenched fist; (6) On May 26,
2012, Shelton received several stitches after fighting with a peer; (7) On July
24, 2012, Shelton refused medication and threw punches at staff.

A conditional release program hospital liaison report
observed that Shelton was not attending group treatment and had also been found
to be making a homemade wine, called “pruno.” 
It was also noted that, on August 2, 2012, “ â€˜[Shelton] became loud,
demanding for coffee, started posturing, then grabbed staff eyeglasses and tore
[them] apart with his hands . . . he began urinating on the walls
stating “fuck you all.” â€™ â€ 
The report concluded:  “Shelton is
seemingly unamenable to treatment at NSH, flagrantly violates rules, and
demonstrates a consistent disregard for others . . . .”

            Shelton
testified that the allegations of aggression were untrue.  He explained: 
“I’m an animated person, they misperceive the fact if I’m angry or upset
or defiant.  I have attention deficit and
impulsive type where it seems like I’m manic all the time and people perceive
that where the fact that I’ve been threatening or violent, it’s not true.  People that know me know that I have a pretty
mild demeanor.”  He denied possessing or
drinking pruno.

            The court found that Shelton
continued to represent a substantial danger of physical harm to others, as a
result of his mental disorder, and ordered Shelton’s commitment extended until
February 7, 2015.  This timely
appeal followed.

II.        Discussion

            “Under section 1026.5,
subdivision (b)(1), ‘[a] person may be committed beyond the term prescribed by
subdivision (a) only under the procedure set forth in this subdivision and only
if the person has been committed under Section 1026 for a felony and by reason
of a mental disease, defect, or disorder represents a substantial danger of
physical harm to others.’  At no less
than 90 days before the term of commitment ends, the prosecuting attorney may
file a petition for extended commitment in the superior court which issued the
original commitment.  (§ 1026.5,
subd. (b)(2).)  The person named in
the petition has a right to be represented by an attorney and the right to a
jury trial.  (§ 1026.5,
subd. (b)(3).)  If, after trial, the
court or jury finds the patient ‘by reason of a mental disease, defect, or
disorder represents a substantial danger of physical harm to others,’ the
patient will be recommitted for an additional period of two years from the date
of termination of the previous commitment. 
(§ 1026.5, subd. (b)(8).)” 
(People v. Zapisek (2007) 147
Cal.App.4th 1151, 1159.)

            Shelton
maintains that the extension order must be reversed because his defense counsel
did not have the unconditional right to waive jury trial over Shelton’s
objection, absent a finding that he was not competent to make the decision
himself.  Shelton relies on a now
depublished opinion, People v. Tran (2013)
216 Cal.App.4th 102, review granted August 14, 2013, S211329, which he contends
makes clear “that defense counsel has some right to waive jury trial, but not
over the objection of her client unless it can be shown on the record that he
lacks the capacity to make that decision, and there was no attempt in this case
to make such a showing.”  Citable
precedent suggests otherwise.

            The
federal and state Constitutions guarantee the href="http://www.fearnotlaw.com/">right to a jury trial in criminal cases,
and that right can be waived only by the defendant personally.  (U.S. Const., 6th Amend.; Cal. Const., art.
I, § 16.)  However, “[t]he right to
trial by jury at a civil extension hearing is statutory, not
constitutional.  (See § 1026.5,
subd. (b)(3), (4)).”  (>People v. Givan (2007) 156 Cal.App.4th
405, 410.)  Section 1026.5,
subdivision (b)(3) provides, in part, “When the petition is filed, 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.” 
Subdivision (b)(4) provides, in part, “[t]he trial shall be by jury
unless waived by both the person and the prosecuting attorney.”  Subdivision (b)(7) provides that the person
“shall be entitled to the rights guaranteed under the federal and State
Constitutions for criminal proceedings. 
All proceedings shall be in accordance with applicable constitutional
guarantees.”

            In >People v. Powell (2004) 114 Cal.App.4th
1153, 1157 (Powell), the defendant
demanded a jury for his section 1026.5 trial extending his commitment to a
state hospital.  The trial court denied
the request on the ground that he had already waived a jury.  The defendant disagreed, asserting that his
attorney had waived a jury.  On appeal,
the defendant contended that the right to jury trial, like that in a criminal
case, must be personally waived.  (>Powell, at p. 1157.)  The Court of Appeal disagreed, noting that a section
1026.5 extension trial is a civil proceeding directed at treatment, not
punishment.  (Ibid.)

            The >Powell court cited People v. Superior Court (Williams)
(1991) 233 Cal.App.3d 477, 488: 
“ â€˜[A]lthough many constitutional protections relating to criminal
proceedings are available in extension proceedings, the application of all such
protections is not mandated by section 1026.5. 
The statutory language merely codifies the application of href="http://www.mcmillanlaw.com/">constitutional protections to extension
hearings mandated by judicial decision.’ â€ 
(Powell, supra, 114
Cal.App.4th at pp. 1157–1158.)  The >Powell court concluded that, like the
protections of the privilege against self-incrimination, the ex post facto
clause, and the double jeopardy clause, the personal waiver of a jury trial was
not applicable at a recommitment trial. 
(Powell, at
p. 1158.)  The Powell court reasoned:  “An
insane person who is ‘a substantial danger of physical harm to others’
(§ 1026.5, subd. (b)(1)) should not be able to veto the informed
tactical decision of counsel.”  (>Powell, at p. 1158.)  Accordingly, “counsel may waive jury trial
over objection of his or her client in a ‘[NGI]’ commitment extension
trial.”  (Id. at p. 1156.)

            We
find the Powell court’s reasoning
persuasive.  And, Powell’s holding is not an anomaly. 
In a variety of situations involving involuntary commitment, the
California courts have held that a jury trial may be waived by counsel, over
the defendant’s objection.  (>People v. Barrett (2012) 54 Cal.4th
1081, 1105 (Barrett) [civil
commitment of “mentally retarded” person who is a “danger” to herself or
others]; People v. Masterson (1994) 8
Cal.4th 965, 972, 974 (Masterson)
[competency proceeding]; People v.
Montoya (2001) 86 Cal.App.4th 825, 829 [mentally disordered offender
proceeding]; People v. Otis (1999) 70
Cal.App.4th 1174, 1177 [same].)

            In >Barrett, supra, 54 Cal.4th 1081, our
Supreme Court first noted that, unlike most other involuntary commitment
schemes, there is no statute authorizing a jury to determine whether someone is
mentally retarded and dangerous for purposes of a Welfare and Institutions
Code, section 6500 commitment.  (>Barrett, at p. 1096.)  However, the parties both “invoke[d] a long
and unbroken line of California appellate court cases holding or
assuming—largely on the basis of federal and state equal protection principles
affecting fundamental interests—that persons alleged to be mentally retarded
and dangerous cannot be denied a jury altogether where jury trials are granted
by statute to persons alleged to be mentally impaired and dangerous under
comparable commitment laws.”  (>Id. at p. 1097, italics
omitted.)  In concluding that counsel had
exclusive control over the decision to waive a jury trial, the >Barrett court relied, in part, on its
earlier decision in Masterson, supra,
8 Cal.4th 965.  (Barrett, supra, 54 Cal.4th at pp. 1101, 1105–1106.)  The court noted that “Masterson . . . made the following key point:  ‘The sole purpose of a competency proceeding
is to determine the defendant’s present mental competence, i.e., whether the
defendant is able to understand the nature of the criminal proceedings and to
assist counsel in a rational manner. 
[Citations.]  Because of this, the
defendant necessarily plays a lesser personal role in the proceeding than in a
trial of guilt.  How can a person whose
competence is in doubt make basic decisions regarding the conduct of a
proceeding to determine that very question?’ 
(Masterson, supra, 8 Cal.4th
[at p.] 971.)”  (Barrett, at p. 1101.) 
Likewise, the Barrett court
noted that “the significant cognitive and intellectual deficits that [mental
retardation] entails, which appear early in life and never recede, affect the
ability to ‘make basic decisions’ regarding the conduct of the [Welfare and
Institutions Code] section 6500 proceeding.  [Citation.] 
Such an individual thus plays a limited ‘personal role’ in the case, and
must rely on counsel to decide all tactical and procedural matters, such as
whether to exercise the jury trial right. 
[Citation.]”  (>Id. at pp. 1103–1104.)  Ultimately, the Barrett court concluded: 
“[S]omeone . . . who is alleged to be mentally retarded and
dangerous under [Welfare and Institutions Code] section 6500, is not in a
position to personally assert or waive the right to jury trial, to sufficiently
comprehend the jury trial advisement, or to override the views of counsel on
the subject.  Sole control over such
tactical and procedural decisions rests with counsel, whether or not the client
has been consulted or objects.”  (>Id. at p. 1105.)

            Shelton
does not persuade us that it is unreasonable to make a similar assumption in
the NGI context.  It defies common sense
to allow a person previously deemed insane and “a substantial danger of
physical harm to others” (§ 1026.5, subd. (b)(1)) to veto the
informed tactical decision of counsel.

            Even,
assuming arguendo, that the court erred in allowing Shelton’s counsel to waive
jury trial over Shelton’s objection, any error was harmless.  In People
v. Epps (2001) 25 Cal.4th 19, 28–29, the Supreme Court explained that where
the right to jury trial is created by statute, and not the Constitution, the
erroneous denial of a jury trial is subject to the People v. Watson (1956) 46 Cal.2d 818 test of harmless error.  Given the record before us, which contains
ample evidence in support of the extension order, it is not reasonably probable
that a different result would have been reached had the extension proceeding
been tried before a jury.

III.       Disposition

            The
order extending Shelton’s commitment to NSH is affirmed.

 

 

                                                                                    _________________________

                                                                                    Bruiniers,
J.

 

 

We concur:

 

 

_________________________

Jones, P. J.

 

 

_________________________

Needham, J.