P. v. Simmons
Filed 6/5/13 P. v. Simmons 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opinion has not been certified for publication or ordered published for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.
MARK STEVEN SIMMONS,
Defendant and
Appellant.
H037403
(Santa Clara
County
Super. Ct.
No. E9909752)
I. Statement
of the Case
Defendant Mark Steven Simmons appeals from an
order extending his involuntary commitment as a
advise him of his right to a jury trial, failing to obtain his personal waiver,
accepting counsel’s jury waiver, and conducting a bench trial.
We affirm
the extension order.
II. Background
and Procedural History
name="_ftnref2" title="">[2]
In 1999, defendant was boarding at a
house where D., a 14-year old girl, lived with her mother. One day, as D. was lying in her bed watching
television, defendant came in and lay down under the covers next to her. He was naked except for a bathrobe. Holding her shoulders, he pressed himself
against her back until she felt his penis.
On four or five other occasions, defendant entered D.’s bedroom and did
the same thing. On another occasion, D.
was sleeping in her mother’s bed and awakened to find defendant next to her,
touching her legs and thighs and between her legs. D. pretended to be asleep. After five to 10
minutes, defendant got into the bed and continued to touch her for another half
hour or more. She tried to push him
off. He eventually stopped and then
began talking as if nothing had happened.
Defendant stopped molesting D. after D. told her aunt, her aunt told her
mother, and they called the police.
In March 1999, defendant pleaded no
contest to two counts of lewd and lascivious acts on a 14-year-old girl more
than 10 years younger than he was. (§
288, subd. (c)(1).) He was 39 at the
time. In May 1999, he was granted
probation on condition he have no contact with D. In November 1999, probation was revoked
because defendant had violated that condition.
In December 1999, defendant admitted the violation and was
committed to prison for two years and eight months.
In November
2000, defendant was transferred from Folsom State Prison to Atascadero State
Hospital (ASH) for treatment of a mentally disordered offender. In August 2001, defendant was released from
ASH to a conditional release program (CONREP) for
re-hospitalized at Napa State Hospital (NSH) for disobeying CONREP rules and
expressing suicidal ideations. In
September, he was transferred back to ASH.
In August 2003, the Santa Clara County District
Attorney filed a petition to extend defendant’s involuntary commitment to ASH
beyond the expiration of his parole term based on allegations that defendant
posed a danger to others due to a mental condition that was not in
remission. (§§ 2962, 2970,
2972.) After a jury trial, the court sustained the petition and extended
defendant’s commitment from November 2003 to November 2004. On appeal, however, this court reversed the
order due to the insufficiency of evidence that defendant’s underlying crimes
qualified defendant for continued involuntary treatment as an MDO. (People
v. Simmons, supra, H026672.)
remand after a bench trial, the court found that the crimes qualified defendant
for continued treatment and reinstated its previous commitment order. On appeal, this court affirmed the
order. (People v. Simmons, supra, H028499.)
In May 2005 and August of 2006, the
People filed petitions to extended defendant’s commitment. The two petitions were consolidated, and
after a jury trial, the court ordered his commitment extended until November
2007. On appeal, we affirmed that
order. (People v. Simmons, supra, H031491.)
Apparently, defendant’s commitment
was extended a number of times after that.
Before the last extension expired in November 2011, the district
attorney sought another extension until November 2012. On July 29, 2011, defense counsel waived a
jury trial. On September 22, 2011, after a bench trial, the court sustained the
petition and extended defendant’s commitment.
III. The
Extension Trial
Fouad
Saddik, M.D., a staff psychiatrist at NSH, testified as an expert in the
diagnosis and treatment of mental disorders and risk assessment. He had been defendant’s treating psychiatrist
since June 2010. Dr. Saddik opined that
defendant suffered from pedophilia. He
based this diagnosis on his treatment and evaluation of defendant, defendant’s
underlying offense, and a previous forensic psychological evaluation prepared
by a “Dr. Geca†at NSH who summarized three sexual incidents involving three
different girls.
title="">[4] Dr. Saddik testified that defendant’s
pedophilia caused him to have serious difficulty controlling his behavior. He believed that if defendant were free in
the community without any supervision, he would he would pose a danger of
physical harm to others because it is possible he would reoffend.
Dr. Saddik
also found that defendant suffered from major depression and alcohol
dependence. Although defendant’s
depression waxed and waned, it and his alcohol dependence were currently in
remission even without medication.
Dr. Saddik
noted that defendant denied the diagnosis of pedophilia. He opined that defendant lacked sexual
regulation and self-regulation and was not sufficiently aware of the triggers
and signs that would help him identify his inappropriate sexual impulses and
not act on them. Improving his ability
to do so was the primary focus of defendant’s relapse prevention plan. Dr. Saddik considered it important that
defendant attend and complete a sex offender group at NSH. Dr. Saddik noted that defendant had been
willing to do so, but a system lock-down at NSH had prevented his
participation.
Dr. Saddik
commended defendant for having started on a relapse prevention plan but found
that at present it was not complete because it did not address his depression
and substance abuse. Defendant also
needed to complete a wellness and recovery plan for all three of his diagnoses. If and when defendant accomplished these
tasks, he could be released to CONREP on outpatient status.
Dr. Saddik
opined that because defendant’s underlying offense occurred when he was
depressed, it was important for him to develop plans to identify the warning
signs of depression, decompensation, and even suicidal thoughts. Dr. Saddik noted, however, that in the past,
defendant had stopped his medication but sought to take it again because his
depression had returned. This was a sign
that defendant recognized his depression.
On the other hand, it revealed that defendant’s depression was
recurrent, and something that would require continuous monitoring.
Dr. Saddik
could not say that defendant’s pedophilia was in remission because the
environment at NSH contained him and eliminated the contraband that might stimulate
him. He also noted that defendant had a
history of developing romantic obsessions.
He noted that defendant had left inappropriate messages for a
rehabilitation technician. Defendant
also talked about an obsession with a female disc jockey named Lisa Fox, who
had obtained a restraining order against him.
Despite it, he sent her a letter, which NSH intercepted. Dr. Saddik explained that these romantic
obsessions were cause for concern because they revealed “vague boundaries with
females†and could possibly increase the danger from his pedophilia if he
became obsessed with a very young girl.
On the
positive side, Dr. Saddik noted no reports of behavioral problems, aggressive
or assaultive conduct, or sexually inappropriate behavior. Moreover, defendant was “programming,â€
enrolled in college classes, regularly attending church singing in a choir, and
had recently applied to be a Universal Life Church minister.
Defendant
testified and rejected the diagnosis of pedophilia. He also said he did not know anyone named Dr.
Geca and denied that any of the incidents summarized in that doctor’s report
had ever occurred.
Concerning
the commitment offense, defendant said that he knew D. was only 14. However, he said she was not a little
girl. He explained that he had been
working at a modeling agency and wanted to use her as a model. He described her as a gorgeous, physically
developed—“a 34Câ€â€”high school cheerleader with long blonde hair that came down
to her waist. He treated her like a
girlfriend, not a little girl, and loved her.
They kissed and snuggled, and he fondled her. He conceded that his conduct might have
harmed her a “little bit.†However, he
felt his conduct had a positive effect in that it broke her habit of flirting
with older men online.
Defendant
denied that if released he would seek to have a relationship with a child. Defendant said that even in the hospital,
contraband alcohol was available.
However, he attended NA and AA meetings and had been sober for 21
years. He said that he worked at the
hospital and had been cleared to work with dangerous equipment.
Defendant
admitted violating probation by having contact with D. He also admitted trying
to send a letter to the disc jockey in violation of the restraining order. In that regard, he believed that the hospital
staff had pulled one of their “dirty tricks†on him to maintain the income they
got from taking care of him. He also
felt that to save her job, Lisa Fox had cooperated with other people, who were
the ones who wanted the restraining order.
He believed that Ms. Fox was scared of him, but he said he still wanted
to meet her in person and compare notes without her bosses listening.
Defendant
said that if unconditionally released, he would continue his AA meetings. He said he would start to develop his
ministry in the Universal Life Church.
He would also pursue a career as a radio announcer and recording artist,
noting that his major in college was broadcasting.
IV. Mootness
The
extension period of defendant’s commitment has expired, and therefore the
propriety of the court’s order is now moot.
Thus, it may not appear necessary to address
defendant’s claims of error concerning the jury advisement, lack of personal
waiver, and bench trial. However,
“we review the merits of appeals from timely filed petitions that are rendered
technically moot during the pending of the
appeal, . . . because the appellant is subject to
recertification as an MDO, and the issues are otherwise likely to evade review
due to the time constraints of MDO commitments.
[Citations.]†(People v.
Merfield (2007) 147 Cal.App.4th 1071, 1074.)
V. The
MDO Commitment Scheme and Extension Procedure
When
persons who have been convicted of a violent crime related to their mental
disorders are eligible for release but currently pose a danger of harm to
others, the Mentally Disordered Offender Act (the Act) (§ 2960 et seq.) permits
their involuntary commitment to a state hospital for treatment until their
disorders can be kept in remission. (In
re Qawi (2004) 32 Cal.4th 1, 9 (Qawi); see Lopez v. Superior
Court (2010) 50 Cal.4th 1055, 1061 (Lopez) [the MDO Act has the dual
purpose of protecting the public while treating severely mentally ill
offenders].)
The Act
provides treatment 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.) “Sections 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.)†(Lopez, supra, 50 Cal.4th at p. 1063.)
Section
2972, subdivision (a) provides, among other things, that when a petition is
filed, the court “shall advise the person . . . of the
right to a jury trialâ€; and “the trial shall be by jury unless waived by both
the person and the district attorney.â€
To obtain an extension, the district attorney must prove, and the trier
of fact must find beyond a reasonable doubt, that (1) the person continues to
have a severe mental disorder; (2) the person’s mental disorder is not in
remission or cannot be kept in remission without treatment; and (3) the person
continues to represent a substantial danger of physical harm to others. (Lopez, supra, 50 Cal.4th at p. 1063; People
v. Beeson (2002) 99 Cal.App.4th 1393, 1398-1399; § 2972, subds. (c), (e).)
VI. Contentions
Defendant
contends that if an MDO is competent, then under the Act, the court must
conduct a jury trial unless the MDO personally and expressly waives a
jury. Thus, he claims that the court
erred in failing to give the required advisement and conducting a bench trial
without obtaining his personal waiver.
He argues the errors violated his right to a jury trial under the Act
and under the state and federal due process and equal protection clauses.
Citing People
v. Otis (1999) 70 Cal.App.4th 1174 (Otis) and People v. Montoya
(2001) 86 Cal.App.4th 825, 829 (Montoya) as well as People v.
Masterson (1994) 8 Cal.4th 965, 974 (Masterson), the Attorney
General argues that the Act does not require a personal waiver and in fact
gives counsel exclusive control over the jury decision.
VII. Discussion
Recently,
in People v. Blackburn (2013) 215
Cal.App.4th 809 [156 Cal.Rptr.3d 106, 112-115] (Blackburn), we addressed identical claims.
First, we
rejected the defendant’s claim that the Act required an MDO’s personal
waiver. We noted that the claim
previously had been rejected in Otis, supra, 70 Cal.App.4th 1174 and Montoya, supra, 86
Cal.App.4th 825, 829. In doing so, those
courts noted that the statutory language did not expressly require a personal
waiver; nor did it clearly preclude a waiver by counsel. The courts also declined to infer such a
requirement because some MDOs may not be sufficiently competent to determine
whether a bench or jury trial is in their best interests. Under those circumstances, the incompetent
MDO must act through counsel, and counsel must have authority to waive a jury
trial, even over the MDO’s objection. (
Cal.App.4th 830-831; cf. People v.
Powell (2004) 114 Cal.App.4th 1153, 1157-1159 (Powell) [relying on Otis
to reject a claim that similar language in section 1026.5 required personal
jury waiver].)
In
___ [156 Cal.Rptr.3d at p. 113].) We
further opined that interpreting the statutory language to require a personal
waiver resulted in consequences that were illogical and anomalous. (Ibid.) We noted that for a variety of reasons, MDOs often
do not appear in court until the day of trial.
We considered it was illogical to prohibit counsel from waiving the
MDO’s direction or with the MDO’s express consent and instead require the court
to order the MDO’s presence at some pretrial hearing just to secure a personal
waiver because in general counsel can waive a client’s more fundamental
constitutional right to a jury trial in civil actions. (Id.
at p. 114; see Cal. Const., art. I, § 16 [right to jury trial]; Code of
Civ. Proc, § 631 [prescribing types of waiver]; Zurich General Acc. &
Liability Ins. Co. v. Kinsler (1938) 12 Cal.2d 98, 105 (
overruled on other grounds in Fracasse v. Brent (1972) 6 Cal.3d 784,
792; Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144
Cal.App.4th 504, 510; Conservatorship of Maldonado (1985) 173 Cal.App.3d
144, 148; see Code Civ. Proc., § 283, subd. (1) [counsel has authority to bind
client in any of the steps of an action].)
We further
observed that some MDO may be so delusional or otherwise affected by their
mental disorders that they lack the capacity to know what is in their own best
interests and make a rational decision.
Under such circumstances, an MDO may not be able to knowingly and
intelligently waive the right to a jury trial.
We opined that “[i]f an MDO is incompetent, and in a particular case
counsel believes that a jury waiver is in the MDO’s best interests, requiring
that MDO’s personal waiver would undermine counsel’s ability to protect the
MDO’s interests . . . and mechanically require the court to conduct a jury
trial or give the incompetent defendant veto power over counsel’s informed
determination.†(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
p. 114].)
In short,
we found that “preventing counsel from waiving a jury at the NGI defendant’s
direction or with the MDO’s consent and preventing counsel from doing so on
behalf of an incompetent MDO are anomalous consequences that would flow from
interpreting the waiver provision literally and restrictively to require a
personal waiver.†(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
p. 114]) For that reason, we
considered it unreasonable to infer such a restrictive and exclusive
legislative intent from the statutory language. (Ibid.)
After
rejecting the defendant’s claim of a personal waiver requirement, we rejected
the Attorney General’s claim that the Act gave counsel exclusive control. We noted that the Act did not expressly
confer exclusive control. Moreover, we
pointed out that when read together, the requirements that the court advise the
MDO of the right to a jury and conduct jury trial unless waived by “the personâ€
not only imply that MDOs can comprehend the advisement but also contemplate
that an MDO can control the jury decision.
(Blackburn, supra, 215
Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 115].) Indeed, we opined that interpreting the Act
to give counsel exclusive control would defeat the purpose of the required jury
advisement and render that provision meaningless surplusage. (Id.
at p. 116.)
We further
explained that the Attorney General’s reliance on Masterson,
supra, 8 Cal.4th 965, Otis,
supra, 70 Cal.App.4th 1174, and Montoya,
supra, 86 Cal.App.4th 825 was misplaced.
We
acknowledged that in Masterson, the
California Supreme Court recognized counsel’s exclusive control over the jury
issue in proceedings to determine the competency of a criminal defendant to stand
trial. (Masterson, supra, 8
Cal.4th at pp. 971, 973.) The
court’s finding rested on both the specific nature of the competency
proceeding, in which the allegedly incompetent defendant plays a lesser role;
and on the assumption that a defendant whose competency is in doubt is unable
to act in his or her own best interests and must therefore act through
counsel. (Id. at p. 971.)
We
noted that more recently the court in People
v. Barrett (2012) 54 Cal.4th 1081 (Barrett)
similarly recognized counsel exclusive control in proceedings under Welfare and
Institutions Code § 6500 to involuntarily commit developmentally or
intellectually disabled persons who pose a danger to others. (Id.
at pp. 1104-1105.) There too counsel’s
exclusive authority derived from the nature of the proceedings. The court explained that the statute applies
to persons who have significant cognitive and intellectual deficits that never
recede and affect the ability to make basic decisions about the conduct of the
proceedings. In other words, it may be
assumed that such disabled persons are unable to act in their own best
interests and must act through counsel.
(Id. at pp. 1103-1104.)
As
we explained in Blackburn, Masterson
and Barrett establish that in certain types of commitment proceedings,
the defendant’s alleged mental state—e.g., incompetency and developmental or
intellectual disability—renders the defendant unable to make reasoned decisions
concerning whether to have a jury trial.
In other words, it is reasonable to categorically assume that such
defendants lack the capacity to make a rational choice. “For that reason, they must act through
counsel, and counsel has exclusive control over the jury issue.†(Blackburn,
supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 119] .)
We
concluded, however, that it was not
reasonable to similarly assume that all MDOs lack the capacity to make rational
decisions about whether to have a jury trial.
In this regard, we relied on Barrett,
where the Supreme Court made that precise point. There, the court distinguished persons who
have developmental and intellectual disabilities from persons who suffer from a
mental disorder, disease, or defect concerning their capacity to function in a
competent manner and, more specifically, to comprehend and control the jury
decision. (Barrett, supra, 54 Cal.4th at pp. 1108-1109.) The court concluded that unlike all persons
with developmental and intellectual disabilities, many mentally ill persons
retain the capacity to function in a competent manner, and therefore, their
illness does not necessarily imply incompetence or a reduced ability to
understand and make decisions about the conduct of the proceedings against
them, such as comprehending an advisement and controlling the decision to
request or waive a jury trial. (
Concerning
be consistent with—indeed that they mirrored—the Masterson-Barrett rationale for recognizing counsel’s exclusive
control over the jury issue.
name="_ftnref6" title="">[6]
In Otis,
counsel waived a jury trial. The
defendant objected and requested a jury trial, but at the time, he was
delusional and said he was being sexually assaulted by invisible police. The trial court denied the request. On appeal the court upheld counsel’s
waiver. (Otis, supra, 70
Cal.App.4th at pp. 1175-1176.) In doing
so, the court explained that “[s]ection 2966 concerns persons who have been
found by the Board of Prison Terms 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.†(Otis, supra, 70 Cal.App.4th at pp.
1176-1177.)
In Montoya,
supra, 86 Cal.App.4th 825, counsel waived a jury. Although the defendant did not object, he
claimed on appeal that his personal waiver was required. (Id. at pp. 828-829.) In concluding otherwise, the court opined
that the Legislature could not have intended to require a personal waiver and
thereby deny counsel the authority to act on behalf of an incompetent MDO. (Id. at pp. 830-831.) In this regard, the court noted that the
defendant’s mind was not functioning normally, and he had repeatedly and
recently demonstrated poor judgment and aberrant behavior. Given the record, the court found “no reason
to believe that defendant was capable of making a reasoned decision about the
relative benefits of a civil jury trial compared to a civil bench trial.†(Montoya, supra, 86 Cal.App.4th at p.
831.)
In
Blackburn, we understood Otis
and Montoya in light of the specific facts and issues in those
cases. (Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
p. 122]; see Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2
[“[l]anguage used in any opinion is of course to be understood in the light of
the facts and the issue then before the courtâ€].) Given the similar mental state of the
defendants in both, we read both cases “for the proposition that when an MDO
appears to be incapable of determining whether a bench or jury trial is in his
or her best interests, the MDO must act through counsel, and counsel has
exclusive authority to decide even over the MDO’s objection.†(Blackburn,
supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 122].) Conversely, “[n]either
case . . . should be read more broadly to hold that counsel
controls the jury issue regardless of whether the MDO is competent to
understand the advisement and make a reasoned decision. This is especially so because neither case
addressed the purpose and function of the mandatory jury advisement.†(Ibid.)
In sum, we
concluded in Blackburn that the Act
did not require an MDO’s personal waiver or give counsel exclusive control over
the jury decision. Rather, we held that
counsel may waive a jury at the MDO’s direction or with the MDO’s consent; and
when there is cause to doubt the MDO’s competence to determine whether a bench
or jury trial is in his or her best interests, counsel can make the decision
even over the MDO’s objection. (
___ [156 Cal.Rptr.3d at pp. 123-124].)
Finally, in
Blackburn, we observed that the
propriety of the bench trial turned on the validity of counsel’s waiver, which,
in turn, hinged on whether the defendant knew he had the right to a jury trial
and directed or knowingly consented to counsel’s waiver. (Blackburn,
supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 124].) The same is true in this case.
As
defendant correctly notes, the record does not reflect that the court gave the
required advisement. This is
understandable. The record also reveals that after being appointed, counsel
waived defendant’s presence at every hearing until the bench trial. However, it is
beyond dispute that counsel was aware of defendant’s right to a jury
trial. And where, as here, counsel
waives an MDO’s presence at pretrial hearings, effectively preventing a direct
judicial advisement before trial, the court may reasonably expect counsel to
discuss all pertinent matters that will arise or that have arisen in pretrial
hearings, including the right to a jury trial and whether to have one. Indeed, “[l]ike all lawyers, the
court-appointed attorney is obligated to keep her client fully informed about
the proceedings at hand, to advise the client of his rights, and to
vigorously advocate on his behalf.
[Citations.] The attorney must
also refrain from any act or representation that misleads the court. (Bus. & Prof.Code, § 6068, subd. (d);
Rules Prof. Conduct, rule 5–200(B).)†(
151-152, italics added.) Moreover,
absent a showing to the contrary, “[a] reviewing court will indulge in a
presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.â€
(People v. Carter (2003) 30 Cal.4th 1166, 1211; Conservatorship
of Ivey (1986) 186 Cal.App.3d 1559, 1566; e.g., Conservatorship
of Mary K. (1991) 234 Cal.App.3d 265, 272
[where no evidence to the contrary, court may presume counsel discussed jury
waiver with client before waiving on client’s behalf].)
Under
the circumstances, and in the absence of evidence to the contrary, we may
presume that counsel discussed the jury issue with defendant. Moreover, the record does not suggest that
defendant was unaware of his right to a jury trial. As noted, his commitment had been extended
numerous times, and he actually had a jury trial on a previous extension.
The
record also does not suggest that defendant was unaware that counsel
intended to waive a jury and had done so or that counsel acted without defendant’s
knowledge or consent or that defendant wanted a jury trial and objected (or
would have objected) to counsel’s waiver.
Any such inferences would be pure speculation on our part.
It is
settled that on appeal, the appellant bears
the burden to affirmatively establish error and then demonstrate that it
resulted in a miscarriage of justice that requires reversal. (Cucinella v. Weston Biscuit Co.
(1954) 42 Cal.2d 71, 82; Freeman v. Sullivant (2011) 192 Cal.App.4th
523, 528; Paterno v. State of California (1999) 74 Cal.App.4th 68,
105-106; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308; see 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409 [presumption of
correctness; “error must be affirmatively shownâ€].)
In short,
given the record before us, defendant cannot satisfy his burden to establish
that he was unaware of the right to a jury trial before counsel waived a jury
or that counsel’s waiver was invalid.
Furthermore,
before any judgment can be reversed for error under state law, it must appear
that the error complained of “has resulted in a miscarriage of justice.†(Cal. Const., art. VI, § 13; Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This means that reversal is justified “when
the court, ‘after an examination of the entire cause, including the evidence,’
is of the ‘opinion’ that it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence of the
error.†(People v. Watson (1956)
46 Cal.2d 818, 836 (Watson).)
With this
in mind, we conclude that even if defendant could show that he was unaware of
the right to a jury trial and that counsel acted without his knowledge and
consent or over his objection, he could not establish prejudice. It is settled that the erroneous denial of a
statutory right to a jury trial is subject to harmless-error review under the Watson
test which, in this context, asks whether it is reasonably probable the result
would have been more favorable had there been a jury trial. (People v. Epps (2001) 25 Cal.4th 19,
29.)
As noted,
Dr. Saddik opined that the diagnosis of pedophilia made it difficult for
defendant to self-regulate his sexual impulses.
He noted that defendant had acted on his obsessions, had had trouble
maintaining appropriate boundaries with women, and had violated probation
conditions and restraining orders concerning his victim and a radio host. He further noted that defendant lacked a
sufficient awareness of the triggers and signs of inappropriate impulses to be
able to prevent acting on those impulses.
In this regard, he pointed out that defendant had not completed relapse
prevention or wellness and recovery plans.
Defendant,
on the other hand, rejected the diagnosis of pedophilia. He denied ongoing interest in having a
relationship with young girls, and he denied misconduct with girls other than
the victim of his commitment offense.
Moreover, he thought of her more as a woman than a young girl. Defendant admitted violating probation and
the restraining order. He also admitted
wanting to meet the woman radio host to talk about what had happened. Defendant sought unconditional release so he
could pursue a ministry and a radio career and continue with AA.
Dr.
Saddik’s testimony constitutes strong evidence to support the commitment
extension order. It is true that his
diagnosis of pedophilia was based in part on Dr. Geca’s forensic evaluation,
that evaluation summarized other incidents, defendant denied those incidents,
and Dr. Saddik said he would question his diagnosis if those incidents did not
in fact occur. However, these
circumstances merely affect the weight to be given Dr. Saddik’s overall opinion
and conclusion. Moreover, it was
entirely reasonable for Dr. Saddik to consider Dr. Geca’s evaluation in
treating defendant and forming his opinion, and Dr. Saddik did not rule out a
diagnosis of pedophilia even if the other incidents did not occur. Furthermore, defendant’s comments about his
victim, his view of the impact his offense had on her, his violation of the
probation condition and restraining order, his desire for unconditional release
despite his failure on outpatient status were circumstances that a jury would
have to consider in determining his credibility and his denial of the other
incidents of misconduct and of his diagnosis of pedophilia.
With these
considerations in mind, and assuming that defendant was unaware of his right to
a jury trial, we do not find it reasonably probable that defendant would have
obtained a more favorable verdict had the court given the required advisement
and conducted a jury trial. (People
v. Watson, supra, 46 Cal.2d at p. 836; e.g., People
v. Cosgrove (2002) 100 Cal.App.4th 1266,
1276 [denial of statutory right to MDO trial harmless].)
As noted
defendant contends that the failure to advise and conduct a jury trial denied
his right to a jury trial under the state and federal
A. Due Process
Defendant
asserts that if the Act did not provide the right to a jury trial, he would
still have the right under the state and federal constitutional guarantees of
due process. He argues that the court’s
procedure in this case violated this constitutional right. However, since there is a statutory right,
defendant’s due process claim is based upon an assumption which is contrary to
the state of existing law. We will not
decide theoretical constitutional questions which are based upon faulty
premises. (People v. Moore (2011)
51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty
premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process
claim challenging state’s actions rejected where argument based upon faulty
premise that defendant committed no unlawful act]; Berardi v. Superior Court
(2008) 160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other
questions of constitutional law unnecessary to our disposition of the caseâ€].)
Moreover,
we note that in Montoya, supra, 86 Cal.App.4th 825, the court rejected the MDO’s
claim that the federal due process clause guaranteed an MDO the right to a jury
trial.
“ ‘Where . . . a State has provided for the imposition
of criminal punishment in the discretion of the trial jury, it is not
correct to say that the defendant’s interest in the exercise of that discretion
is merely a matter of state procedural law.
The defendant in such a case has a substantial and legitimate
expectation that he will be deprived of his liberty only to the extent determined
by the jury in the exercise of its statutory discretion, [citation], and that
liberty interest is one that the Fourteenth Amendment preserves against
arbitrary deprivation by the State.’
[Citation.] 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. [Citation].â€
(Id. at pp. 831-832, quoting Hicks v. Oklahoma (1980) 447
U.S. 343, 346 (Hicks); cf. Powell, supra, 114 Cal.App.4th at p.
1159 [rejecting NGI’s claim that denial of jury trial violated constitutional
right to due process].)
Defendant cites In re Gary W. (1971) 5 Cal.3d 297, People
v. Feagley (1975) 14 Cal.3d 338, People v. Thomas (1977) 19 Cal.3d
630, and In re Hop (1981) 29 Cal.3d 82 for the proposition that due
process guarantees the right to a jury trial in commitment cases.
In
these cases, the court found that persons facing involuntary commitment under
statutory schemes that did not provide for a jury trial were similarly
situated to persons facing commitment under schemes that provided a jury trial
upon request. Thus, under the equal
protection clause, the former group is entitled to a request a jury trial
unless there is a valid justification for not allowing them to do so. And if there is no such valid justification,
the unequal treatment is arbitrary and violates due process. However, none of these cases separately
analyzed whether, apart from arbitrarily treating similarly situated persons
differently, the due process clause independently guarantees persons subject to
civil commitment the right to a jury trial.
Accordingly, we find defendant’s reliance on them misplaced.
Moreover,
although the arbitrary denial of a statutory right may violate the
constitutional guarantee of due process, the record here does not establish
that the court’s failure to advise defendant and failure to conduct a jury
trial were arbitrary. Counsel
waived defendant’s presence at every hearing before trial, and he also waived a
jury trial. Again, we do not presume
error, and, as noted, because defendant has not shown that counsel’s waiver was
unauthorized or otherwise invalid, he can no more show a constitutional
violation than he could show a statutory violation. Accordingly, we reject defendant’s due
process claim.
B. Equal Protection
Defendant
asserts that in every scheme permitting the involuntary commitment of a person
for mental health purposes, there is a right to a jury trial. He further asserts that an MDO defendant
facing an extended commitment is similarly situated to persons facing a commitment
under these other schemes. Thus, he
claims that in conducting a bench trial here, the court denied him equal
protection. Defendant’s claim fails
because the Act provides defendant with the right to a jury trial, and counsel
waived that right. Thus, defendant fails
to identify how he was treated differently from how he would have been treated
under any of the other commitment schemes.
VIII. Disposition
The order
extending defendant’s commitment is affirmed.
______________________________________
RUSHING, P.J.
I CONCUR:
____________________________________
PREMO, J.
ELIA, J., Concurring:
I
respectfully concur in the judgment on the ground that no reversible error has
been shown. (Cal. Const., art. VI,
§ 13; People v. Watson (1956) 46
Cal.2d 818, 836.) We must presume for
purposes of this appeal that appellant's counsel informed appellant that he was
entitled to be tried by a jury and counsel waived a jury trial in accordance
with appellant's informed consent (see maj. opn., ante, pp. 3-4). (See
557, 564 [all presumptions are indulged to support a lower court judgment or
order regarding matters as to which the record is silent; error must be
affirmatively shown]; see also Conservatorship
of John L. (2010) 48 Cal.4th 131, 148 ["When a statutory right in a
civil commitment scheme is at issue, the proposed conservatee may waive the
right through counsel if no statutory prohibition exists. [Citations.]"], 151-152 [attorney is obligated
to keep client fully informed of proceedings, to advise client of his rights,
and to refrain from any act or representation that misleads the court].)
Even
assuming arguendo that appellant had a constitutional right to a jury trial as
a matter of due process, the same presumption applies on appeal. (See Denham
v. Superior Court, supra, 2
Cal.3d at p. 564; Conservatorship of John
L., supra, 48 Cal.4th at pp.
151-152.) To the extent appellant is
arguing that he had concomitant due process rights, under either the United
States or California Constitution, to a judicial advisement of his right to a
jury trial and to personally and expressly waive a jury on the record, his
arguments are unpersuasive since he was represented by counsel who presumably
advised and consulted with him and there is no constitutional provision
explicitly requiring an express, personal waiver of a jury in noncriminal
proceedings. (See Cal. Const., art. I,
§ 16; cf. Code Civ. Proc., § 631; People
v. Bradford (1997) 14 Cal.4th 1005, 1052-1053 [in criminal prosecution, no
express, personal waiver from a defendant is required for waiver of
constitutional right to testify; a trial judge may safely assume that a
nontestifying defendant is abiding by his counsel's trial strategy].)
Consequently,
it is unnecessary in this case to repeat the majority's conclusions in
Cal.App.4th ___ [2013 WL 1736497] regarding the exact extent of a counsel's
authority to waive a jury for trial on a petition for continued treatment under
the Mentally Disordered Offender (MDO) Act.
(See Pen. Code, §§ 2970, 2972, subd. (a).) As the U.S. Supreme Court stated: "The
duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to declare principles
or rules of law which cannot affect the matter in issue in the case before
it." (Mills v. Green (1895) 159 U.S. 651, 653 [16 S.Ct. 132]; see
Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
_____________________________
ELIA,
J.
name="_ftn1" title=""> [1] All unspecified statutory references are to
the Penal Code.
name="_ftn2" title=""> [2] In his opening brief, defendant relies on the
factual and procedural summary in a prior unpublished opinion of this
court. We take judicial notice of our
three prior unpublished decisions concerning defendant: People v. Simmons (Aug.
25, 2004, H026672) [nonpub. opn.]; People v. Simmons (April
26, 2006, H028499) [nonpub. opn.]; People v. Simmons (Jan.
31, 2008, H031491) [nonpub. opn.].)
(Evid. Code, § 452, subd. (d).)
We too base our background and procedural summary on these decisions and
the record in this case.
