IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
September 7, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANTHONY DAWAYNE LEE TURNER, DEFENDANT AND APPELLANT.
Super. Ct. No. 94F04029
The opinion of the court was delivered by: Mauro ,j.
P. v. Turner CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a bench trial, the trial court extended the mental health commitment of defendant Anthony Dawayne Lee Turner. (Pen. Code, § 1026.5, subd. (b)(1); undesignated statutory references are to the Penal Code.) On appeal, defendant contends (1) there was insufficient evidence to support the finding that defendant has serious difficulty in controlling his dangerous or violent behavior, (2) the trial court erred in denying his motion for self-representation, and (3) the trial court erred in failing to afford him a jury trial. The People agree that the trial court erred in denying defendant's motion for self-representation.
We conclude that there was sufficient evidence to support the required finding that defendant has serious difficulty in controlling his dangerous or violent behavior. But we agree with the parties that the trial court erred in summarily denying defendant's motion for self-representation. We will conditionally reverse the order extending his commitment and remand this case for consideration of defendant's motion for self-representation.
Regarding defendant's contention that the trial court erred in failing to afford him a jury trial, we conclude that counsel impliedly waived jury trial on behalf of defendant. Nonetheless, on remand, if defendant is allowed to represent himself, trial shall be by jury unless waived by defendant and the prosecutor.
In March 1994, defendant "forced his way into a neighbor's home, refusing to leave despite the homeowner's plea." In March 1996, he was found not guilty by reason of insanity of first degree burglary. Defendant was committed to the Department of Mental Health.
I Defendant first contends that there was insufficient evidence to support the finding that he has serious difficulty in controlling his dangerous or violent behavior. We disagree.
To extend a commitment under section 1026.5, there must be proof, among other things, that the "person under commitment has serious difficulty in controlling dangerous behavior." (People v. Galindo (2006) 142 Cal.App.4th 531, 533, 536-537 [applying the holding in In re Howard N. (2005) 35 Cal.4th 117]; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159-1165 [same]; People v. Bowers (2006) 145 Cal.App.4th 870, 878 (Bowers) [same].)
In reviewing the sufficiency of evidence to support a section 1026.5 extension, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5, subdivision (b)(1) beyond a reasonable doubt. (Bowers, supra, 145 Cal.App.4th at pp. 878-879.)
Defendant focuses on only one hospital report dated November 2009 and argues there is scant evidence that he does not control his behavior. But a review of the entire record establishes that there is substantial evidence that defendant has serious difficulty in controlling his dangerous or violent behavior.
A Napa State Hospital report of defendant's progress during the most recent commitment period (June 2008 through June 2010) recounts several incidents in which defendant engaged in recent violence or aggressive behavior. For example, "on 12-16-08, he came very close, face-to-face with a peer with whom he had previously had very little interaction, and said 'what the fuck do you want?' and repeated it twice." On December 18, 2008, he attempted to escape and "was placed on continuous observation as a result." Continuous observation was discontinued the next day but reinstated a few days later because defendant "'was threatening to "fuck someone up" if not transferred immediately to another unit.'" On December 23, 2008, when told he had a court date, "[h]e picked up a chair and threw it against the wall. The treatment team then assisted him in calling the DA's office to find out his next court date, and when told it was March 2009, he ripped the phone out of the wall, dashed it on the floor, breaking it into pieces, the[n] walked threateningly towards the unit psychologist." He remained agitated the rest of the day, "banging doors and windows with all of his strength and ripping another individual's book to shreds." The following day, he broke two more chairs, threatened to hurt staff with a piece of one of the chairs, yelled, made fists, and refused medications. "He was told that he would be given medications and asked to go to the seclusion room for this purpose with hospital police present. He refused, and when 2 police officers attempted to take each arm to escort him there, he resisted and attempted to bull his way through the assembled staff, necessitating a 'take-down' involving several police officers and other staff. He was placed in 5-point restraints and given sedating medication intramuscularly, and released from restraints after one hour because he no longer showed evidence of being imminently dangerous." Thereafter, he was "on a 1:1 staff-to-patient ratio for safety, the need for which is reassessed every 24 hours."
On May 20, 2009, defendant was admitted to Atascadero State Hospital. At Atascadero, defendant violated the rules (went to Canteen without permission and bartered with another patient in October 2009, smoked cigarettes in July and August 2009) and twice engaged in verbal conflicts with peers (in June and September 2009). He also "inappropriately star[ed] at female staff" on two occasions in May 2009, pulled his pants down, exposing himself in July 2009, and "admitted [in May 2009] that he wanted to have sex with a female staff and would expose himself if he felt 'they wanted it.'"
The November 2009 report states that defendant's "understanding of his dangerous/criminal behavior in the commission of [the] instant offense is rather limited" and that he tends to "minimize his responsibilities and to blame others." Defendant reported that he did not believe that he suffered from any mental illness and admitted that he might abuse drugs in the future. Defendant had twice failed on community release placements. "His outpatient status was revoked for the first time on July 9, 1999, for 'not following his treatment program and exhibiting signs of paranoia and ideas of persecution'; and for the second time on October 16, 2003, for 'exhibiting bizarre behavior, masturbating in public, and being noncompliant with Conditional Release Program requests.'" The November report concludes in part: "If history is any guide, his intensified paranoia, hallucinations, disorganization, confusion, poorly channelled sexual urge, and impaired insight/judgment, with or without the aid/influence of alcohol/drugs will serve to stoke his aggressive impulse."
"One single recent act of violence unrelated to the original crime, or a single psychiatric opinion that an individual is dangerous as a result of a mental disorder, constitutes substantial evidence to support an extension." (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490.) The record amply reflects that defendant has serious difficulty controlling his dangerous behavior. Sufficient evidence supports defendant's extended commitment.
II Defendant contends, and the People agree, that the trial court erred in summarily denying defendant's March 2010 motion for self-representation, a motion made long before trial in September 2010. This court previously considered this same issue in defendant's appeal from the trial court's March 2010 denial of his petition for outpatient treatment (heard while the recommitment proceedings were pending). Concluding that the trial court erred, this court reversed the denial of defendant's motion for self-representation. (People v. Turner (Dec. 8, 2010, C064759) [nonpub. opn.].) Because we have been unable to determine what the trial court did in response to our prior decision, and because this case involves a separate appealable order, we must once again conclude that the trial court erred in summarily denying defendant's motion for self-representation.
III Defendant further contends that the trial court erred in failing to afford him a jury trial. We disagree.
Section 1026.5, subdivision (b)(4) provides that "[t]he trial shall be by jury unless waived by both the person and the prosecuting attorney." The record reflects no express waiver of a jury trial. Although represented by counsel, defendant personally asserted his jury trial right.
Nonetheless, an attorney in "not guilty by reason of insanity" recommitment proceedings may waive jury trial on defendant's behalf (People v. Powell (2004) 114 Cal.App.4th 1153, 1157-1158) and such a waiver may be implied. (People v. Givan (2007) 156 Cal.App.4th 405, 410-411 (Givan).) "The right to trial by jury at a civil extension hearing is statutory, not constitutional. (See § 1026.5, subd. (b)(3), (4).) Like the protections of the double jeopardy clause and the ex post facto clause, the requirement of a personal waiver of the right to trial by jury has no application in a civil extension hearing. [Citations.] Likewise, 'an insane person who is "a substantial danger of physical harm to others"' has no right to veto his or her attorney's waiver of the right to trial by jury in a civil extension hearing. [Citation.]" (Id. at p. 410.)
In this case, defendant's trial counsel impliedly waived the right to jury trial on defendant's behalf. When defendant orally asserted his right to a jury trial in March 2010, he was represented by counsel who did not join in defendant's request. Counsel advised the trial court in June 2010 of his decision to submit the matter on the documents on file and did so at the court trial in September 2010. Defendant could not veto counsel's choice.
On remand, however, if defendant's motion for self-representation is granted, the trial shall be by jury unless waived by defendant and the prosecutor.
The order extending commitment is conditionally reversed and the matter is remanded for the trial court to consider the merits of defendant's request to represent himself under the principles of Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (right of criminal defendant to self-representation), Indiana v. Edwards (2008) 554 U.S. 164, 178 [171 L.Ed.2d 345, 357] (states may "insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves"), and People v. Watts (2009) 173 Cal.App.4th 621, 629 (determining a defendant's "ability and willingness to 'abide by rules of procedure and courtroom protocol'").
If the trial court grants defendant's motion for self-representation, the trial court shall conduct a new trial. If
the trial court denies defendant's motion for self-representation, the order extending commitment shall be reinstated.
We concur: RAYE , P.J. ROBIE ,J.
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