P. v. Garcia
Filed 3/29/13 P. v. Garcia 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opinion has not been certified for publication or ordered published for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.
MANUEL GARCIA,
Defendant and
Appellant.
H037734
(Santa Clara
County
Super. Ct. No. 153966)
After a
court trial, defendant Manuel Garcia
was found to be a mentally disordered
offender (MDO) and was ordered committed for continued involuntary
treatment for one year. (See Pen. Code,
§§ 2970, 2972.)
title="">[2] Defendant was not present at the pretrial
hearing when his counsel waived a jury trial.
On appeal, defendant contends that the trial court erred by failing to
obtain a waiver from him personally, and by failing to advise him of his
statutory and constitutional rights and that reversal is required.
For reasons
that we will explain, we will affirm the judgment.
In April
2011, the district attorney filed a petition to extend defendant’s involuntary
treatment as an MDO for one year.
According to the petition, defendant had been convicted of violating
sections 245, subdivision (a)(1), and 288, subdivision (a). In 1992, defendant was sentenced to a total
of four years in prison. In November
1993, he was admitted to Atascadero State
Hospital as an MDO. Defendant was later discharged to a
conditional release program (CONREP) but was recommitted to Atascadero
a short time later, following a violation of both parole and CONREP
conditions. Defendant’s commitment for
extended by the court and, according to the district attorney’s petition,
defendant was currently at Napa State
Hospital. In the April 2011 petition, the district
attorney sought defendant’s continued involuntary treatment for one year, until
November 25, 2012.
Defense
counsel appeared without defendant for all court hearings prior to trial on the
petition. In particular, on August 19, 2011, defense counsel
appeared in court, waived defendant’s appearance, and confirmed that a jury
trial was waived.
On October 27, 2011, a court trial was
held on the petition. The sole witness
who testified was Dr. Eric Khoury, a staff psychiatrist at Napa
State Hospital. He testified as an expert in the diagnosis
and treatment of mental
disorders and risk assessment.
Dr. Khoury explained that defendant had recently transferred to Dr.
Khoury’s unit at the hospital, and that defendant had been assigned to him for
approximately five weeks by the time of trial.
In connection with this transfer, Dr. Khoury had reviewed various
records regarding defendant, including those indicating his progress at the
hospital, and had talked to other members of defendant’s treatment team. Dr. Khoury also had daily contact with
defendant, had conducted defendant’s monthly psychiatric interview, and had
participated in defendant’s monthly treatment conferences.
Dr. Khoury
testified that defendant has a severe mental disorder and has been diagnosed
with schizophrenia. In this regard, defendant has a history of
hearing voices or experiencing delusions, and has exhibited disorganized
thinking, disorganized behaviors, and inappropriate affect. As an example of disorganized thinking,
Dr. Khoury testified that defendant had been upset about one month ago
when a peer on the ward was not being friendly to him. The peer wanted space and to be left alone,
and defendant took offense. Dr. Khoury
had a long discussion with defendant about it.
Defendant had difficulty understanding that a person may choose who to
associate with and that it is not necessarily an insult to defendant. He also had difficulty understanding the idea
of boundaries. The experience with the
peer had distressed or agitated defendant, and Dr. Khoury’s “big concernâ€
was that such a reaction in defendant “might lead to violent acting out if he’s
not able to process those feelings or grasp that concept.†Regarding disorganized behaviors,
Dr. Khoury explained that defendant has exhibited sexually inappropriate
behavior, such as touching the buttocks of a female staff member and publicly
masturbating and exposing himself to female staff as recently as March 2011. Since that time, defendant’s behavior had
been “good,†and he had progressed to the point of being moved to an “open
unit.â€
In addition
to schizophrenia, defendant had been diagnosed with exhibitionism and with
pedophilia. When asked how these
diagnoses “interact†with defendant’s schizophrenia, Dr. Khoury explained that
if defendant is having a psychotic episode or experiencing disorganized
thinking, it places him at greater risk for committing sexually inappropriate
or offensive acts. In other words, “the
schizophrenia might impair his ability to refrain from exposing himself or
molesting a child.â€
It was Dr.
Khoury’s understanding that defendant’s underlying crimes involved sexual
offenses and also an attack on someone in a vehicle. Regarding sexual offenses, Dr. Khoury
testified that defendant had shown “a history of being attracted to young
female children and he ha[d] sexually offended against that population.â€
Dr. Khoury
believed that defendant’s schizophrenia impaired his ability to control his
behavior. Although defendant had been
“doing better over the past six months,†the improvement had occurred “in the
context of a very controlled setting.â€
Dr. Khoury still had a “serious concern†based on defendant’s “current
state that he wouldn’t be able to control his impulses and would be at risk of
harming someone†if he were free in the community.
Defendant
receives medication for his schizophrenia.
However, the schizophrenia is not in complete remission, as defendant
continues to exhibit disorganized thinking.
Defendant’s records contain a notation regarding frequent requests for
“as needed†medications for unprovoked agitation in the latter part of 2010 and
in 2011. Using “as needed†medications
is “a sign that someone isn’t using their coping skills to deal with the
issue.†Dr. Khoury testified that the
matter was “of concern,†although over the past six months, defendant had “done
better.â€
Defendant
does not consistently acknowledge that he has a mental illness. Further, Dr. Khoury believed that defendant
did not really understand what his mental illness is and how it affected him.
Within the
past several months, defendant had been attending sex offender treatment
groups. The group facilitators reported
to Dr. Khoury that, although defendant had been “doing his best to be in active
treatment,†he had not made very much progress.
According to Dr. Khoury, the facilitators had reported that defendant’s
progress was “minimal to none.â€
Dr. Khoury
believed the “big thing†that defendant needed to work on was an understanding
of the connection between his mental illness and his crimes. According to Dr. Khoury, defendant “doesn’t
see the connections. He doesn’t
understand what the warning signs are, what the triggers might be, . . . what
the boundaries are and the things and the people and the places to stay away
from.†In this regard, defendant did not
have a “good†relapse prevention plan, which related to his sex offender
treatment, his mental illness, and his substance abuse.
Dr. Khoury
believed that defendant was not ready for unconditional release in the
community. He believed that if defendant
was untreated in the community, he would represent a substantial danger of
physical harm to others. Specifically,
Dr. Khoury believed that defendant “could get sexually aggressive and commit
further sex crimes.†Dr. Khoury
explained that defendant’s behavior even in a very structured setting was
sexually offensive and that he showed no self-control. Further, “it would be quite hard for
[defendant] to get along given . . . the severity of his mental illness, his
sexual predilections, and his cognitive dysfunction. For him to be out in the community without
supervision . . . would be a really, really hard thing to manage.â€
At the
conclusion of the trial, the court found the allegations of the petition true
and ordered defendant’s term of commitment extended for one year, until November 25, 2012.
III.
DISCUSSION
MDO Act
Before
addressing the substance of defendant’s contentions, we will briefly review the
statutory scheme that governs the commitment of a person as an MDO. “ ‘The Mentally Disordered Offender Act (MDO
Act), enacted in 1985, requires that offenders who have been convicted of
violent crimes related to their mental disorders, and who continue to pose a
danger to society, receive mental health treatment . . . until their
mental disorder can be kept in remission.
[Citation.]’ [Citation.] The MDO Act is not penal or punitive, but is
instead designed to ‘protect the public’ from offenders with severe mental
illness and ‘provide mental health treatment until the severe mental disorder
which was one of the causes of or was an aggravating factor in the person’s
prior criminal behavior is in remission and can be kept in remission.’ (§ 2960.)
The MDO Act has the dual purpose of protecting the public while treating
severely mentally ill offenders.
[Citation.]†(
Cal.4th 1055, 1061 (Lopez).)
“The MDO
Act provides for treatment of certified MDO’s at three stages of commitment: as a condition of parole, in conjunction with
the extension of parole, and following release from parole.†(Lopez,
supra, 50 Cal.4th at p. 1061.) “Section 2962 governs the first of the three
commitment phases, setting forth the six criteria necessary to establish MDO
status; these criteria must be present at the time of the State Department of
[State Hospitals’s] and Department of Correction and Rehabilitation’s
determination that an offender, as a condition of parole, must be treated by
the State Department of [State Hospitals].â€
(Lopez, supra, at pp. 1061-1062; see § 2962, subd. (a).) Among the criteria is a requirement of “proof
that an offender suffers from a severe mental disorder, that the illness is not
or cannot be kept in remission, and that the offender poses a risk of danger to
others. [Citation.])†(Lopez,
supra, at p. 1062.) Relevant to this appeal, “[s]ections 2970 and
2972 govern the third and final commitment phase, once parole is
terminated. If continued treatment is
sought, the district attorney must file a petition in the superior court
alleging that the individual suffers from a severe mental disorder that is not
in remission, and that he or she poses a substantial risk of harm. (§ 2970.)
Commitment as an MDO is not indefinite; instead, ‘[a]n MDO is committed
for . . . one-year period[s] and thereafter has the right to be released unless
the People prove beyond a reasonable doubt that he or she should be recommitted
for another year.’ [Citation.]†(Lopez,
supra, at p. 1063; see § 2972, subds.
(a), (c) & (e).)
Relevant to
this appeal, section 2972, subdivision (a) states the following regarding the
hearing on a petition for continued treatment or recommitment: “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 hearing shall be a civil
hearing . . . . [¶] The standard of proof under this section
shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury
shall be unanimous in its verdict.
both the person and the district attorney. . . .†(Italics added.)
of Right to a Jury Trial
Prior to
trial, defense counsel waived a jury trial.
On appeal, defendant contends that section 2972, subdivision (a)
requires a trial court to obtain a defendant’s personal waiver of a jury. Defendant argues that the court’s failure to
do so in this case violated the statute, his state constitutional right to a
jury trial, and his right under the due process clause of the Fourteenth
Amendment to a jury trial.
The
Attorney General contends that the right
to a jury trial in an MDO proceeding is statutory only, and that the right
may be waived by counsel.
We first
address defendant’s claim of a constitutional right to a jury trial before
considering his statutory claim. The
legal issues raised by defendant are subject to de novo review. (See Conservatorship
of John L. (2010) 48 Cal.4th 131, 142; Amdahl
Corp. v. County of Santa Clara (2004) 116 Cal.App.4th 604, 611.)
Authority
The Sixth
Amendment right to a jury trial in all criminal prosecutions is extended to
proceedings in state courts under the Fourteenth Amendment. (Duncan
v. Louisiana (1968) 391 U.S. 145, 149-150.)
It does not, however, apply to proceedings that are not criminal
prosecutions. (See McKeiver v. Pennsylvania (1971) 403 U.S. 528, 541, 545, 550 (plur.
opn. of Blackmun, J.); id., at pp.
553-554 (conc. & dis. opn. of Brennan, J.).) Although the United States Supreme Court has
not directly considered whether the right to a jury trial applies to civil
commitments based on a person’s dangerousness due to a mental disorder, federal
appellate courts have considered this question and concluded that the Sixth
Amendment right to a jury trial does not apply.
(See, e.g., U.S. v. Sahhar
(9th Cir. 1990) 917 F.2d 1197, 1205-1206 [Sixth Amendment jury trial right
does not apply to a federal hospital commitment for a person adjudged
incompetent to stand trial because the commitment “serves a regulatory, rather
than punitive, purposeâ€].) Further,
although the Seventh Amendment provides for the right to a jury trial for civil
suits at common law, this is not one of the amendments selectively incorporated
as part of the process due in state courts under the Fourteenth Amendment. (McDonald
v. City of Chicago (2010) 561 U.S. __, 130 S.Ct. 3020, 3034-3035, fn. 13.)
the due process clause of the Fifth Amendment has not been interpreted to
require a jury trial in federal civil commitment proceedings based on a
person’s dangerousness due to a mental disorder (U.S. v. Sahhar, supra, at
p. 1207 [“due process does not require a jury trial†for a federal hospital
commitment of a person adjudged incompetent to stand trial];
34, 43 [no due process right to jury trial in federal civil commitment as
sexually dangerous person]), although other attributes of due process may apply
(see Specht v. Patterson (1967) 386
U.S. 605, 610; Foucha v. Louisiana
(1992) 504 U.S. 71, 75-76, 79).
Authority
The
California Constitution affords an “an inviolate right†to a jury trial in
civil cases to the extent the jury right existed at common law when the state
Constitution was adopted. (Cal. Const.,
art. I, § 16; see Corder v. Corder
(2007) 41 Cal.4th 644, 656, fn. 7 (Corder);
People v. One 1941 Chevrolet Coupe
(1951) 37 Cal.2d 283, 286-287 [citing former Cal. Const., art. I, § 7].) “Consequently, the constitutional right to a
jury trial does not apply . . . to special proceedings
[citation], although the Legislature may provide for a jury trial in these
situations by statute [citations].†(
In this case, defendant has not argued that there was any common law
analog to proceedings to extend the treatment of an MDO. (Cf. People
v. Fuller (1964) 226 Cal.App.2d 331, 335 [sexual psychopathy proceedings
were “civil in nature and of a character unknown at common law†and therefore,
“the use of a jury is a matter of legislative grant and not of constitutional
rightâ€].)
The
California Constitution also affords a right to a jury trial in criminal
actions in which a felony or a misdemeanor is charged. (Cal. Const., art. 1, § 16.) The state Constitution does not, however,
expressly address the jury right with respect to California statutory
proceedings for involuntary commitment and treatment of a person incompetent to
stand trial or otherwise dangerous due to mental illness. These proceedings are generally recognized to
be essentially civil, not criminal, although their subjects are afforded by
statute some of the same rights constitutionally due criminal defendants. (E.g., In
re De La O (1963) 59 Cal.2d 128, 150 [narcotics addict commitment
proceedings “are in the nature of special civil
proceedings unknown to the common law, and hence there is no right to jury
trial unless it is given by the statuteâ€]; In
re Bevill (1968) 68 Cal.2d 854, 858 [commitments under the since repealed
mentally disordered sex offender statutes “are civil in nature and are
collateral to the criminal proceedingsâ€]; In
re Gary W. (1971) 5 Cal.3d 296, 309 [extensions of commitment to former
California Youth Authority under Welfare and Institutions Code section 1800
“are not juvenile proceedings, and are not criminal,†but “are ‘special
proceedings of a civil nature’ â€].)
For example, in People
v. Masterson (1994) 8 Cal.4th 965 (Masterson),
the California Supreme Court concluded that, although in a criminal case a jury
may be waived only by the defendant, the “related†proceeding to determine a
criminal defendant’s competency to stand trial “is not itself a criminal
action.†(Id. at p. 969.) Such a
competency proceeding “ ‘is neither a criminal action nor a civil action;
rather, it is a special proceeding.
[Citations.]’ [Citation.]†(Ibid.) The
court further observed that, although there is a state constitutional right to
a jury trial in both criminal and civil actions, the right to a jury trial in a
competency proceeding is purely statutory.
(Ibid.) The court ultimately concluded that defense
counsel may waive the statutory right to a jury trial in a mental competency
hearing pursuant to sections 1368 and 1369, even over the defendant’s
objection. (See id. at p. 974.)
Relevant
here, the Court of Appeal in People v.
Montoya (2001) 86 Cal.App.4th 825 (Montoya)
relied on Masterson, among other
authorities, to conclude that defense counsel may waive a jury trial on behalf
of a defendant in an MDO proceeding. (
and, following a court trial, the defendant was recommitted as an MDO. (Id.
at pp. 827-828.) On appeal, the defendant
argued “at length, citing to numerous federal cases dealing with the Sixth
Amendment jury trial rights of criminal defendants, that because he did not
trial, his federal and state constitutional rights were infringed.†(Montoya,
supra, at pp. 828-829.)
The
proceedings that are neither civil nor criminal, but ‘special proceedings,’
such as a competency hearing, the right to a jury trial may be waived by
counsel, even over defendant’s express objection. (Masterson,
supra, [8 Cal.4th] at
p. 969.) [¶] Although [an MDO] hearing, like a competency
hearing, is something of a hybrid, a civil hearing with criminal procedural
protections, it is nonetheless, as the statute clearly states and California
courts have consistently agreed, a civil hearing. [Citations.]
As a civil hearing, jury trial may thus be waived ‘as prescribed by
statute.’ [Citation.]†(Montoya, supra, 86
Cal.App.4th at pp. 829-830, fn. omitted.) The court further concluded that the
defendant’s jury trial interest in an MDO proceeding is “ ‘merely a matter of
state procedural law’ and does not implicate the Fourteenth Amendment. [Citation.]â€
(Montoya, supra, at p. 832; see People
v. Cosgrove (2002) 100 Cal.App 4th 1266, 1273-1274 (Cosgrove) [following Montoya
and concluding that the right to a jury trial in an MDO proceeding is statutory
and not constitutional].)
Based on
the foregoing authorities, we conclude that defendant’s claim of a right to a
jury trial in the proceeding to extend his commitment term under the MDO Act is
not of a constitutional dimension. We
therefore turn to the issue of whether his statutory right to a jury trial had
to be personally waived.
Personally Waived
As we
stated above, section 2972, subdivision (a) provides that “[t]he trial shall be
by jury unless waived by both the person and the district attorney.†On appeal, defendant contends that section
2972, subdivision (a) requires a trial court to obtain a defendant’s personal
waiver of a jury.
v. Otis (1999) 70 Cal.App.4th 1174
The
appellate courts have concluded that the reference to “person†in the context
of a jury waiver under the MDO Act permits defense counsel to waive a jury on
behalf of the defendant. For example, in
People v. Otis (1999) 70 Cal.App.4th
1174 (Otis), the Court of Appeal
addressed whether identical language in section 2966, subdivision (b),
which sets forth the procedure for challenging the initial commitment as an
MDO, requires the defendant to personally waive a jury. (Otis,
supra, at pp. 1176-1177.) The trial court had accepted the defense
counsel’s waiver of a jury over the defendant’s objection. The Court of Appeal concluded that the
defendant need not personally waive a jury and that counsel may act on behalf
of the defendant. (Id. at p. 1175.)
In reaching
this conclusion, the Court of Appeal observed that “[g]enerally in civil cases,
an attorney has ‘complete charge and supervision’ to waive a jury. [Citations.]â€
(Otis, supra, 70 Cal.App.4th at p. 1176.)
Although the defendant did not dispute that an MDO proceeding is a civil
matter, he argued that the reference to “person†in section 2966,
subdivision (b) required that a jury waiver be by “the person himself.†(Otis,
supra, at p. 1176.) The Court of Appeal pointed out, however,
that “nothing in the requirement that the waiver must be by ‘the person’
precludes the person’s attorney from acting on his [or her] behalf. The Legislature did not say the waiver had to
be made ‘personally.’ [¶] Had the Legislature intended that waiver
could only be made personally by the [defendant], the Legislature would have
made its intent clear. For example, the
California Constitution, article I, section 16 states that waiver of a
jury in a criminal case must be by ‘the defendant and the defendant’s
counsel.’ No similar language appears in
section 2966, subdivision (b).†(
The Court
of Appeal was not persuaded by the defendant’s attempt to rely on other language
in section 2966, subdivision (b) to support his argument that the reference to
a waiver of a jury by a “person†means by the person himself or herself. For example, section 2966, subdivision
(b) refers to a waiver of time by “petitioner or his or her counsel.†The defendant contended that “construing the
word ‘person’ to include counsel makes the words ‘or his or her counsel’
surplus.†(Otis, supra, 70
Cal.App.4th at p. 1176.) The Court
of Appeal explained that the rules of statutory construction, including the
rule that surplusage should be avoided, cannot be “mechanically
appl[ied] . . . to reach a result that is at odds with the
intention of the Legislature.†(
section 2966, the Court of Appeal reasoned:
“Section 2966 concerns persons who have been found by the Board of
Prison Terms[
title="">[5]]
to be mentally disordered. 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.†(
v. Fisher (2006) 136 Cal.App.4th 76, 81 [“We decline the invitation to
overrule Otis and continue to believe
that it was correctly decidedâ€].)
v. Montoya (2001) 86 Cal.App.4th 825
In
similar conclusion that defense counsel may waive jury trial on behalf of the
defendant under the same statute at issue in the present case. (Montoya,
supra, 86 Cal.App.4th at p.
830.) In Montoya, similar to the instant case, the defense counsel waived a
jury and the defendant did not protest the waiver in court. (Id.
at pp. 827-828, 831, fn. 4.) The
defendant was recommitted as an MDO following a court trial. (Id.
at pp. 827-828.) On appeal, the
defendant contended that his constitutional rights were violated because he did
not personally waive his right to a jury trial.
As we
discussed above, the Court of Appeal in Montoya
rejected defendant’s constitutional claim.
(Montoya,
pp. 828-830, 831-832.) The
Court of Appeal also determined that the words in section
2972, subdivision (a) that “ ‘[t]he trial shall be by jury unless waived
by both the person and the district attorney’ †“mean defense counsel may
waive jury trial on behalf of his [or her] client†(Montoya, supra, at
p. 830). In making this
determination, the Montoya court rejected
the defendant’s argument that, “since the word ‘person’ as used in other parts
of section 2972 refers to the defendant personally, it must do the same in this
sentence of subdivision (a).†(
Otis that the rules of statutory
construction may not be applied to reach a conclusion that conflicts with
legislative intent, and that there is no reason to believe the Legislature
intended to leave the decision about a jury trial in the hands of a defendant
who might not be sufficiently competent to determine what is in the defendant’s
best interest. (Montoya, supra, at
pp. 830-831.) The
defendant in the case before it “did not contest that he was an MDO not in
remission,†and “[t]he fact that the Legislature gave him other personal rights
within the statute [did] not lead [the court] to conclude that he had to
personally waive his right to a jury trial in a civil proceeding.†(Id.
at p. 831.) Moreover, “the Legislature
knows how to make clear when a personal jury waiver is required,†and “[n]o
such language is present in the disputed sentence of section 2972.†(Ibid.)
In the
present case, defendant acknowledges that Otis
and Montoya are adverse to his position,
but he nevertheless argues that the language of section 2972 supports his
position and that Otis and
For
example, we are not persuaded, based on the reasoning of Montoya and Otis, by
defendant’s contention that, because the word “person†as used in other parts
of section 2972, subdivision (a) refers to defendant personally, the reference
in that subdivision to a jury waiver by the “person†must be similarly
construed. (Montoya, supra, 86
Cal.App.4th at pp. 830-831; Otis,
pp. 1176-1177.)
We also
disagree with defendant’s contention that, if the jury right may be waived by
counsel, there is no reason for the statutory requirement that the court advise
the person of the jury right (§ 2972, subd. (a)). Although there is no reason to believe that
the Legislature intended to leave the decision about a jury trial in the hands
of a defendant who might not be sufficiently competent to determine what is in
the defendant’s best interest (Montoya,
supra, 86 Cal.App.4th at pp. 830-831;
Otis, supra, 70 Cal.App.4th at p. 1177), an advisement about
the right to a jury trial would not be meaningless to the extent the person is
able to understand that right or confer with counsel about the issue. (See In
re Qawi (2004) 32 Cal.4th 1, 24 [“commitment for a mental disorder does not
by itself mean that individuals are incompetent to participate in their own
medical decisionsâ€]; Montoya,
certainly conceivable . . . that a patient might be mentally disordered for
some purposes and not for others, it is particularly difficult to sort those
categories out in a case of schizophreniaâ€].)
Indeed, as defendant acknowledges in his reply brief, “a lack of
competency to make the decision himself [regarding a jury trial] does not mean
that he lacks any ability to discuss the matter with his attorney and provide
input as to the decision.â€
Defendant
also argues that the MDO Act “leaves other decisions to the individualâ€
regarding whether the person should bring challenges to the first phase of
commitment as an MDO where the person is required to accept treatment as a
condition of parole. The decisions
include whether to request a hearing before the Board of Parole Hearings if the
person disagrees with the initial MDO certification decision (§§ 2964,
subd. (a), 2966, subd. (a)), whether to request a hearing before the board if
outpatient treatment has not been granted (§ 2964, subd. (b)), whether to
challenge in court the determination by the board that the person meets the
criteria of an MDO (§ 2966, subd. (b)), and whether to appeal the trial
court judgment. (See
Defendant argues that, with respect to the issue of jury waiver, if “the
Legislature was concerned that alleged MDOs were not capable of making the
decisions necessary to protect their own interests, the Legislature would not
have allowed such persons to make all these [other] important decisions.â€
We are not
persuaded by defendant’s argument. The
decisions identified by defendant arguably involve substantial rights, such as
whether to challenge a determination by the board or the court that a person is
an MDO. To the extent that these
decisions are, as argued by defendant, left by the MDO Act to the determination
of the person, we do not believe this compels the conclusion that the
Legislature intended other rights, such as the statutory jury right, to be
waived personally by the person instead of by counsel. Case law has recognized that an attorney’s
authority is limited to certain matters.
(See Masterson,
criminal cases, the attorney “has general authority to control the procedural
aspects of the litigation†and to bind the client in these matters, but the
attorney may not bind the party “as to certain fundamental mattersâ€];
1006, 1013-1014 [an attorney’s authority to control procedural matters in a
civil case, such as the statutory right to jury, does not include the authority
to relinquish substantial rights, such as the right to be present, without the
client’s consent].) The MDO Act is
consistent with such case law to the extent it allows counsel to waive the
statutory right to jury and leaves other decisions to the defendant.
In sum, we
conclude that the reference to “person†in section 2972, subdivision (a)
permitted defense counsel in this case to waive a jury on behalf of defendant.
of Right to Jury Trial
As stated
above, section 2972, subdivision (a) also provides that the “court shall advise
the person . . . of the right to a jury trial.â€
On appeal, defendant contends that the trial court was required to
comply with section 2972, that the court’s failure to comply with the statute
violated his due process rights, and that the judgment must be reversed.
The
Attorney General contends that a trial court’s failure to provide “the
statutory advisement [is] moot, rather than an error of omission†when, as in
this case, defense counsel “is present at the first appearance.†The Attorney General also argues that the
failure to advise does not constitute a due process violation. Further, the Attorney General contends that
the error, if any, in failing to advise was harmless under People v. Watson
(1956) 46 Cal.2d 818 (Watson).
There is no
indication in the record that the trial court gave the jury trial advisement as
required by section 2972, subdivision (a).
Assuming that the trial court’s failure to provide the jury trial
advisement was error, we determine that the error did not constitute a denial
of due process.
“[The
United States Supreme Court has] long recognized that a ‘mere error of state
law’ is not a denial of due process.
[Citation.] If the contrary were
true, then ‘every erroneous decision by a state court on state law would come
[to this Court] as a federal constitutional question.’ [Citations.]â€
(Engle v. Isaac (1982) 456
U.S. 107, 121, fn. 21.) Due process does
not safeguard “the meticulous observance of state procedural prescriptions . .
. .†(Rivera v. Illinois (2009) 556 U.S. 148, 158 [“Because peremptory
challenges are within the States’ province to grant or withhold, the mistaken
denial of a state-provided peremptory challenge does not, without more, violate
the Federal Constitutionâ€].) Under the
MDO Act, “[a] jury sitting in a civil hearing pursuant to sections 2970 and
2972 does not impose criminal punishment and has no power to determine the
extent to which the defendant will be deprived of his liberty. Defendant’s jury trial interest thus is, in
this case, ‘merely a matter of state procedural law’ and does not implicate the
Fourteenth Amendment. [Citations.]†(Montoya,
supra, 86 Cal.App.4th at p. 832; see
defendant’s reliance on Hicks v. Oklahoma
(1980) 447 U.S. 343 to support a federal due process claim].)
We also
understand defendant to contend, based primarily on People v. Alvas (1990) 221 Cal.App.3d 1459 (Alvas), that equal protection principles require the court to advise
the person of the right to a jury trial.
In Alvas, the appellate court
determined that a person subject to civil commitment proceedings under Welfare
and Institutions Code section 6500 had an equal protection right to a jury
trial advisement because there was no compelling reason for the disparate
statutory treatment between such a person and someone else subject to
under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.),
which expressly requires a jury trial advisement (id., § 5302). (
We are not
persuaded by defendant’s equal protection argument. Defendant acknowledges in his reply brief
that Alvas has since been disapproved
by the California Supreme Court in People
v. Barrett (2012) 54 Cal.4th 1081 (Barrett). In Barrett,
the court concluded that neither due process nor equal protection requires a
jury trial advisement or a personal waiver of the right to a jury in a
proceeding under Welfare and Institutions Code section 6500. (Id.
at pp. 1105-1106, 1109.) Further, unlike
the statutory scheme at issue in Alvas
(Welf. & Inst. Code, § 6500), which does not expressly provide for the
right to jury or require that the person be advised of such a right, the MDO
Act expressly provides for both the jury right and a jury trial advisement
(§ 2972, subd. (a)). As defendant
fails to articulate how a person subject to the MDO Act is treated
unfairly in comparison to a similarly situated person under a different
statutory scheme, we determine that defendant fails to establish a meritorious
equal protection claim. (See
individuals ‘ “similarly situated with respect to the legitimate purpose of the
law receive like treatment†’ â€].)
Since the
only possible error we have found is the lack of advisement of defendant’s
right to a jury pursuant to section 2972, subdivision (a), reversal is not
required unless it is reasonably probable a result more
favorable to defendant would have been reached if the court had advised him.
supra, 100 Cal.App.4th at
pp. 1268, 1275-1276 [determining that the trial court’s error in an MDO
proceeding in granting the People’s motion for a directed verdict was harmless
under Watson]; see Cal. Const., art. VI, § 13; Watson,
supra, 46 Cal.2d at p. 836.) We find any such error to be harmless in this
case.
In
denial of a jury trial harmless, where the expert testimony in support of an
MDO finding was “overwhelming†and the attempt to discredit the experts on
cross-examination had “minimal†effect.
(Cosgrove,
testimony by Dr. Khoury, who was the sole witness to testify at trial, may
be characterized as overwhelming, we believe his testimony certainly can be
described as significant, reliable, and uncontradicted in demonstrating
defendant’s need for continued involuntary treatment. Dr. Khoury testified that defendant has a
severe mental disorder, schizophrenia; that the schizophrenia is not in
remission; and that by reason of the disorder, defendant poses a substantial danger
of physical harm to others. (See § 2972,
subd. (c).) Among other testimony, Dr.
Khoury explained the risk posed by defendant’s diagnoses of schizophrenia,
exhibitionism, and pedophilia. Dr.
Khoury also testified that defendant did not consistently acknowledge he had a
mental illness, and that defendant did not understand the mental illness, how
it affected him, and its connection to his crimes. Further, defendant’s progress in sex offender
treatment groups was “minimal to none.â€
Defendant presented no evidence at trial, let alone any evidence that
contradicted Dr. Khoury’s opinions. We
conclude that it is not reasonably probable that a jury would have evaluated
the trial testimony any differently than did the trial judge. (Cosgrove,
supra, at pp. 1275-1276; see Cal.
Const., art. VI, § 13; Watson, supra,
46 Cal.2d at p. 836.) We therefore
determine that defendant was not prejudiced by the trial court’s failure to
advise him of his right to a jury trial.
The October
27, 2011 order extending defendant’s commitment under the MDO Act is
affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
PREMO, ACTING P.J.
__________________________
GROVER, J.
The record on appeal contains documents that also refer to defendant as “Manuel
Ronald Garcia†and “Manuel Ruano Garcia.â€
name="_ftn2" title=""> [2]
All further statutory references are to the Penal Code unless otherwise
indicated.
