IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANDREW BRIAN WATTS, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
P. v. Watts
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Andrew Brian Watts appeals from an order extending his commitment pursuant to Penal Code sections 1026 and 1026.5.*fn1 He contends that he was denied a jury trial in violation of his due process rights. As we find no violation of defendant's due process rights, we will affirm the commitment extension order.
On December 15, 1980, defendant (then age 24) killed his father by strangulation and dismembered the body with a knife and a machete at his parent's home while he was in an apparent psychotic rage. He then stole his father's van and traveled to Salt Lake City, were he was arrested. He was charged by information filed February 2, 1981, with murder (§ 187; count 1) and vehicle theft (Veh. Code, § 10851; count 2). He was found incompetent to stand trial pursuant to section 1370 and referred to Atascadero State Hospital (Atascadero). After his competency was restored, he was found not guilty by reason of insanity (NGI) of manslaughter (§ 192) and vehicle theft. He was readmitted to Atascadero in 1983. He was released on outpatient status under the care and supervision of South Bay Conditional Release Program (CONREP) in 1989. In 1993, his outpatient status was revoked after he tested positive for cocaine and was non-compliant with treatment. He was separately charged with assault on a peace officer (§ 245, subd. (c)) and battery on a peace officer (§ 243, subd. (c)), found not guilty by reason of insanity, and readmitted to Atascadero.
Defendant was released on outpatient status in both cases in July 1997. His outpatient status was revoked and he was admitted to Napa State Hospital (Napa) in June 2005. Thereafter, defendant's commitment on this case and the assault case (superior court case No. 169048) were periodically extended by the superior court.
The most recent extension of defendant's commitment in this case was set to expire on August 30, 2009. On April 10, 2009, the Acting Medical Director of Napa requested that the district attorney file a petition for extension of defendant's commitment pursuant to sections 1026 and 1026.5. The district attorney filed a petition for defendant's extended commitment on April 21, 2009. After several continuances, jury trial was set for November 30, 2009. On November 13, 2009, at a hearing on a discovery request at which defendant was not present, defendant's appointed counsel waived a jury trial. The November 30, 2009 trial date was vacated and the matter was reset for a court trial on December 3, 2009. On December 3, 2009, defendant requested a Marsden hearing.*fn2
The Marsden Hearing
At the Marsden hearing, defendant informed the court that he had asked his counsel for a jury trial and to have an evaluation by an independent psychologist or psychiatrist. "I mentioned I would be willing to spend a couple of months in County jail to see this through, you know, to have my legal rights taken care of, and everything. [¶] And [counsel] felt that it was in my best interest to just stay in Napa. I don't - you know, I realize I might lose my place on my unit. I might lose my bed in the hospital. I am willing to go to court for a jury trial and have, you know, the whole legal process take place so a full view of my rights are being shown."
Counsel informed the court that he had hired the mental health expert that defendant had requested, Dr. Greene, but after reviewing defendant's records Dr. Greene concluded that the case "was not a winner in a court trial or a jury trial." Counsel stated that he would "typically set a case for jury trial if . . . the case is a viable winner in jury trial, in which case it would make sense to set it for jury trial," or if "[t]here is potential upside, in which there is some reward for taking a risk at losing [the defendant's] spot at Napa, . . . possibly decompensat[ing] in county jail and possibly even picking up new charges in county jail." However, Dr. Greene "confirmed there was not an upside to this case. There was no possible gain." Counsel consulted with defendant's prior counsel, who informed him that if defendant spent time in county jail "awaiting jury trial or any trial that this could easily interrupt [defendant's] treatment." Counsel also discussed defendant's case with another mental health expert with knowledge of defendant's case, who agreed that defendant would not gain any benefit by having a jury trial.
Counsel stated: "So I called up Mr. Watts, explained to him why I was waiving the - why I was not going to go to jury trial with this. I probably neglected to tell him I consulted with Dr. Greene, but I did explain to him the reasons why we were going with the court trial. The main reason, there is possibly a down side meaning that's something to lose some work at Napa. [¶] So far as the risk assessment, I don't see any possible gain by going through jury trial. I do see a risk in interruption of treatment. The risk assessment that means don't do the jury trial. [¶] And so that is why I am not doing a jury trial in this case. I am doing it looking towards Mr. Watts'[s] best interests." Counsel also stated that he was ready for a court trial and that he believed "the court trial instead of a jury trial is Mr. Watts'[s] best option. I understand that is not what Mr. Watts wants. But I believe it is the best option."
The court asked defendant if he thought "at any level that [counsel's] reasons for wanting to do a court trial rather than a jury trial makes sense?" Defendant answered, "No." "[H]e works for me. I should be able to say what I want, and he should follow my wishes." Defendant also stated that he wanted to talk to Dr. Greene to "[g]ive me more peace of mind. Give me something to focus on. Somebody that is independent from the hospital or CONREP."
The court informed defendant that his counsel "has given some good reasons in my opinion as to why he has decided to take this tactic with you, and approach your case from the court trial point of view. I don't see any reason at this point to force him to do something that he does not think is in his client's best interest." The court, therefore, denied defendant's Marsden motion. The court then took a recess to allow defendant time to talk to counsel about going forth with the court trial.
The Court Trial
After the recess, defendant informed the court that he wished to submit the matter to the court on the mental health reports. Although defendant stated that he did not wish to cross-examine any witnesses, the court told defendant that, "I think that at this point because of so much that has transpired here in court this morning[,] go forward on the court trial, and let your attorney decide to cross-examine at whatever level he believes he should do that at this time."
Dr. Michael Glasser, a staff psychiatrist at Napa, testified as an expert in the diagnosis of mental disorders and in assessment of risk. He is the staff psychiatrist on defendant's unit and he has been defendant's treating psychiatrist since the middle of January 2009. Defendant has a current diagnosis of schizophrenia paranoid type continuous, and polysubstance dependence. "I believe [he has] delusional ideation, that continues." A month before the trial, defendant stated that "he believed that he had bat wings, that he was an angel, that were hidden behind his scapula." This belief "has been long term. It has been chronic over the entire time he has been at the hospital" since his latest return in 2005. Defendant also "believes he is seeing Jesus Chris[t] on the cross somewhere in San Francisco" and he "refus[es] to have his blood drawn because he feels that his red blood cells are being tortured . . . ." Defendant needs to have his blood drawn regularly because staff needs to determine whether his medications are causing physical problems and they need to monitor his diabetes and psychotropic medications.
Based on defendant's past history, Dr. Glasser believes that defendant would not take his psychotropic medication if he were not in a situation where staff gives him his medication every day. "That would put him in a significant risk for possible reoffending as more acute delusions materialize if he stops the medication." In addition, defendant's substance abuse contributed to the first of defendant's past outpatient status revocations, and defendant has only involved himself intermittently in substance abuse treatment since then. "Once he were to leave a controlled setting I have no reason to believe that he would continue his medications. That he would continue with significant substance abuse treatment."
The court found the allegations in the petition filed by the district attorney to be true beyond a reasonable doubt. It ordered that defendant remain at Napa and that his commitment be extended for two years, until August 30, 2011.
Defendant contends that he was denied a jury trial in violation of his due process rights. He acknowledges that his trial counsel can, over his objection, waive his statutory right to a jury trial. He argues, however, that "the on-the-record reasons given by trial counsel for waiving that right reveal a violation of [his] due process rights." "[T]rial counsel decided not to allow [defendant] to have a jury trial simply because the process would interrupt [defendant's] treatment. [Defendant] contends that the State's failure to provide [defendant] with the necessary treatment and treatment facilities so that he can exercise his right to a jury trial constitutes a due process violation under both the state and federal constitutions." "[Defendant] acknowledges that, on this record, it may not be entirely clear whether [his] rights were violated by the state's failure to provide appropriate treatment or whether his trial attorney was misinformed." "Therefore, this court should reverse the judgment of the trial court and remand the matter either with instructions to enforce [defendant's] due process rights or to hold a hearing and determine whether those rights were in fact violated."
The Attorney General contends that defendant was not denied due process. "[T]here would inevitably be an interruption in [defendant's] treatment which could be detrimental to his progress if the case was set for a jury trial. Experienced counsel reasonably and competently weighed whether it was worth this risk, and given [counsel's] reasonable assessment of the unlikelihood of success in the case, concluded it was in [defendant's] best interest to have a court trial."
In People v. Powell (2004) 114 Cal.App.4th 1153 (Powell), the NGI committee contended that the right to a jury trial on a commitment extension petition, like jury trial in a criminal case, must be personally waived. (Id. at p. 1157.) The appellate court disagreed. "Section 1026.5, subdivision (b) provides that a two-year recommitment may be ordered where the trier of fact finds that the NGI committee poses a substantial risk of physical harm to others as a result of a mental disease, defect, or disorder." (Ibid.) Section 1026.5, subdivision (b) states in pertinent part: "(3) 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. . . . [¶] (4) The court shall conduct a hearing on the petition for extended commitment. The trial shall be by jury unless waived by both the person and the prosecuting attorney. . . . [¶] . . . [¶] (7) 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. . . ."
"An extension trial . . . is civil in nature and directed to treatment, not punishment. [Citations.] '[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 constitutional protections to extension hearings mandated by judicial decision.' [Citation.]" (Powell, supra, 114 Cal.App.4th at pp. 1157-1158.) Thus, notwithstanding section 1026.5, subdivision (b), the personal waiver of jury trial by the NGI committee is not applicable in a commitment extension hearing. (Id. at p. 1158.)
The Powell court continued: "The Legislature, in enacting section 1026.5, did not say that the jury waiver must be 'personally' made by the NGI committee. [Citations.]" (Powell, supra, 114 Cal.App.4th at p. 1159.) "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. We do not deny the right to jury trial for such a person. We only limit the manner in which it may be invoked or waived." (Powell, supra, 114 Cal.App.4th at p. 1158.) "[An] NGI committee who is not mentally competent must act through counsel. If the person is not competent to waive jury at the extension trial, his or her attorney may waive jury on his or her behalf." (Ibid.) "Because the jury does not impose criminal punishment and has no power to determine the extent to which the person will be deprived of his or her liberty, a waiver of jury trial through counsel does not violate the person's constitutional right to jury trial. [Citations.]" (Id. at p. 1159; accord, People v. Givan (2007) 156 Cal.App.4th 405, 410-411.)
In this case, defendant was not present when his appointed counsel waived a jury trial. However, defendant was required to act through counsel (see, e.g., § 1026.5, subd. (b)(7) [counsel shall be appointed for an indigent subject of an extension petition]), and defendant had no right to veto counsel's waiver of a jury trial if the waiver was an informed tactical decision. (Powell, supra, 114 Cal.App.4th at p. 1158.) Here, the trial court held a Marsden hearing after defendant complained that counsel waived a jury trial over his objection, and the court found that counsel had "good reasons" for waiving a jury trial.
Counsel stated that he consulted with two mental health experts familiar with defendant's case, including the one that defendant had requested, and both experts concluded that defendant would gain no possible benefit by having a jury trial. Defendant's chosen expert did not think that defendant was going to have a favorable result at either a jury trial or a court trial. In addition, defendant's prior counsel stressed that defendant's treatment at Napa would be interrupted while in county jail awaiting any trial, and current counsel felt that the longer defendant was in county jail the more likely defendant could decompensate or pick up new criminal charges. Certainly, a jury trial would be much longer than a court trial, even if the same witnesses are called to testify at both trials, due to the time needed to pick a jury at the beginning of trial and to instruct the jury at the close of trial. Thus, counsel believed, based on his review of the case and after consulting with two mental health experts, that it was in defendant's best interests to interrupt defendant's treatment at Napa for the shortest time possible by waiving a jury trial and having a court trial on the petition for defendant's extended commitment.
"As a court that reviews the conduct of counsel in hindsight, we are reluctant to second-guess tactical decisions made by trial counsel. [Citations.]" (People v. Andrade (2000) 79 Cal.App.4th 651, 660.) And we are more reluctant to do so in light of the trial court's determination at the Marsden hearing that counsel had "good reasons" for making his tactical decision to waive a jury trial. In this case, two mental health experts told counsel that defendant would not prevail at either a jury trial or a court trial, the trial court found that counsel had "good reasons" for waiving a jury trial, and the court conducted a full trial despite defendant's request to submit the matter on the mental health reports. We believe that counsel's tactical decision to waive a jury trial after reviewing the case and consulting with two mental health experts was an informed decision based on the information before him. (See Strickland v. Washington (1984) 466 U.S. 668, 689.) Accordingly, we conclude that defendant's due process rights were not violated when counsel waived a jury trial on defendant's behalf.
The order extending defendant's commitment to August 30, 2011, is affirmed.
WE CONCUR: MIHARA, J. duffy, J.