Trial Court: Santa Clara County Superior Court No.: BB304666 Trial Judge: The Honorable Gilbert T. Brown (Santa Clara County Super. Ct. No. BB304666)
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
Under the Mentally Disordered Offender Act (the Act) (Pen. Code, § 2960 et seq.), the state can commit a mentally disordered offender (MDO) to a hospital for treatment for a specified period of time as a condition of parole, and it can extend the commitment if at the end of the period the MDO poses a danger to others due to his or her mental disorder. Under the Act, the MDO has the right to a jury trial. The Act requires that the court "advise the [MDO] . . . of the right to a jury trial" and conduct a jury trial "unless waived by the person and the district attorney." (Pen. Code, §§ 2966, subd. (b); 2972, subd. (a).)*fn1
Defendant claims that an MDO has the right to decide whether to waive the right to a jury trial, and that the waiver provision requires a jury trial unless the MDO personally waives it. The Attorney General claims that counsel has exclusive control over whether to waive a jury trial and can do so even over the MDO's objection.
We hold that the waiver provision does not require a personal waiver or give counsel exclusive control. Rather, 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 capacity 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. Finally, to protect the right to a jury trial and ensure compliance with the statute, we further hold that when the court conducts a bench trial, the record must contain an express waiver and affirmatively establish the validity of that waiver.
II. STATEMENT OF THE CASE
Defendant Bruce Lee Blackburn appeals from an order extending his commitment to Atascadero State Hospital (ASH) as an MDO. (§§ 2970, 2972.) He claims that the court erred in conducting a bench trial on the petition to extend his commitment and that the error violated his right to a jury trial.
We affirm the extension order.
In 2004, defendant was convicted of first degree burglary and false imprisonment and sentenced to prison.*fn2 (§§ 459, 460, 236, 237.) In 2006, defendant was deemed an MDO and committed to ASH for treatment as a condition of parole. (§ 2962.) Thereafter, defendant's commitment was extended a number of times. (§§ 2962, 2970, 2972.) Before the last extension expired on October 19, 2011, the Santa Clara County District Attorney filed a petition to extend defendant's commitment once again. On July 19, 2011, after a bench trial, the court sustained the petition and extended defendant's commitment to October 19, 2012.
IV. THE EXTENSION HEARING
At the extension trial, Kevin Perry, Ph.D., testified as an expert in the diagnosis and treatment of mental disorders and risk assessment. He was not a member of defendant's treatment team but met with defendant for a forensic evaluation and later drafted a report recommending an extension of his commitment. Dr. Perry testified that defendant suffers from "schizoaffective disorder, bipolar type," which defendant manifests by being paranoid that other patients are stealing from him and having grandiose delusions that he is the son of God and that he can communicate over long distances without any technology. Based on recent hospital progress reports and his own evaluation, Dr. Perry opined that defendant's disorder is not in remission. He noted that during the evaluation, defendant seemed to understand its purpose, but he exhibited "thought disorganization," in that his thinking was not logical or internally consistent, and he would jump from topic to topic. Defendant also expressed some persecutory delusional thoughts that hospital authorities were taking things from him.
Dr. Perry reported that defendant had been under an involuntary medication order at ASH, and even though that order had expired, defendant generally continued to take his medication. He was transferred to Coalinga State Hospital, and for a time, defendant's medication regimen was stopped because he developed some medical complications.
Dr. Perry reported that defendant realizes that it is good for him to attend hospital group therapy sessions, and he does so about 70 percent of the time.
He further explained that before being considered for release, defendant would have to develop a wellness and recovery plan consisting of strategies to help him identify the things that trigger his symptoms and manage those symptoms and his behavior in the community. Defendant had completed some work on a plan while at ASH, but as of the date of the hearing, he had not completed an "appropriate" and "viable" plan.
In sum, Dr. Perry opined that defendant posed a risk of harm to others due to his mental disorder and history of violent behavior. He noted that within the past few weeks, defendant had exhibited delusional and irrational thinking and impulsive and bizarre behavior similar to that which had accompanied his commitment offense. For this reason, Dr. Perry did not believe that defendant would do better in a less restrictive placement.
Defendant contends the court erred in failing to advise him of the right to a jury trial and conducting a bench trial. Initially, the record did not reflect a jury advisement or an express waiver. On our own motion, we directed the trial court to settle the record concerning whether there were any unreported, pretrial discussions about jury advisements and waivers. (See Cal. Rules of Ct., rules 8.155 & 8.137.)
In its settled statement, the court related that "[i]t was the custom and practice of [the Honorable Gilbert T. Brown] to call the mental health calendar each Friday on the record. Prior to calling the calendar, all cases set were discussed in chambers." Defendant's civil commitment was first called on April 6, 2011. At that time, counsel was appointed, and counsel waived defendant's presence because he was at Atascadero State Hospital. The case called again on April 29, 2011, then May 13, and then June 3. At each hearing, counsel waived defendant's presence. "On June 3, 2011, [defense counsel] stated in chambers that [defendant] was not willing to submit to an extension of his commitment to the Department of Mental Health and wanted a trial. He also stated that he, counsel, was requesting a court trial rather than a jury trial. The People were in agreement with having a court trial." Trial was set for July 19, 2011.
Given the settled statement, defendant contends that counsel's waiver was ineffective because section 2972 requires an MDO's personal waiver. Relying primarily on People v. Otis (1999) 70 Cal.App.4th 1174 (Otis) and People v. Montoya (2001) 86 Cal.App.4th 825, 829 (Montoya), the Attorney General argues that the statute does not require an MDO's personal waiver and instead gives counsel exclusive control over whether to have a bench or jury trial.
The extension period of defendant's commitment has expired, and therefore the propriety of the court's order is now moot. Accordingly, it may not be necessary to address the parties' diametrically opposing legal claims concerning the validity of counsel's waiver and the 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, 1075, italics omitted.)
Moreover, we continually see appeals from commitment orders where, as here, the record does not reveal an advisement or an express waiver and where, as here, the defendant and the Attorney General assert the same competing claims. Moreover, in our view, the relevant published case law does not provide a clear, comprehensive, and definitive resolution of these claims. For these reasons, we exercise our discretion to address the parties' claims. (In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 142, fn. 2 (John L.); e.g., Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1; People v. Harris (1993) 14 Cal.App.4th 984, 990; Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380, 385.)
VII. 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 Act 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.)
As noted, 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 trial"; and "the trial shall be by jury unless waived by both the person and the district attorney."*fn3 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).)
VIII. PERSONAL WAIVER VERSUS COUNSEL'S EXCLUSIVE CONTROL
As noted, defendant claims the Act requires an MDO's personal waiver, and the Attorney General claims that counsel has exclusive control over whether to have a bench or jury trial.
In Otis, supra, 70 Cal.App.4th 1174 and Montoya, supra, 86 Cal.App.4th 825, the courts linked the issues raised by the two claims.*fn4 The courts concluded that an MDO's personal waiver is not required for two reasons: the statutory language does not expressly say so; and counsel must be able waive on behalf of an MDO who lacks the capacity to determine what is in his or her best interests. In both cases, the court upheld a waiver by counsel because the MDO lacked the capacity to make a reasoned decision.
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 court denied the request. On appeal the defendant claimed that the language requiring a jury trial "unless waived by both the person and the district attorney," meant that only the person--i.e., the MDO--could waive the jury trial. (Otis, supra, 70 Cal.App.4th at p. 1176.)
In a brief opinion, the court disagreed. It found "nothing in the requirement that the waiver must be by 'the person' precludes the person's attorney from acting on his behalf" and noted that "[t]he Legislature did not say the waiver had to be made 'personally.' " (Otis, supra, 70 Cal.App.4th at p. 1176.) The court opined that if the Legislature had intended to require a personal waiver, it would have made its intent clear and unambiguous. (Ibid.)
The court further explained that "[s]section 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 p. 1177, italics added; see People v. Powell (2004) 114 ...