Trial Court: Santa Clara County Superior Court No.: C9945301 Trial Judge: The Honorable Gilbert T. Brown
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. C9945301)
In 2000, defendant Maxwell Martin Fuquay was found not guilty by reason of insanity (NGI) of battery with serious bodily injury, and he was committed to a state hospital. (Pen. Code, §§ 242, 243, subd. (d), 1026.5, subd. (a).)*fn1 Thereafter, his commitment was extended four times. (§ 1026.5, subd. (b).) On March 21, 2011, before the last extension expired, the Santa Clara County District Attorney filed a petition to extend it again. At a pretrial hearing on July 8, 2011, defense counsel waived a jury. On July 28, 2011, after a bench trial, the court sustained the petition and extended defendant's commitment to September 10, 2013.
On appeal from the extension order, defendant claims that the court violated his constitutional and statutory rights by failing to advise him of his right to a jury trial and conducting a bench trial without obtaining his express, personal waiver.
We affirm the extension order.
II. THE EXTENSION HEARING
Dr. Shakeel Khan, defendant's treating psychiatrist at Napa State Hospital (NSH), testified that defendant suffered from paranoid schizophrenia and poly-substance dependence. He said that defendant was currently exhibiting symptoms of the disorder. For this reason, he opined that defendant was currently dangerous and agreed with the NSH recommendation that defendant's commitment be extended.*fn2 Dr. Khan reported that during the past two years, defendant had committed six assaults on fellow patients, most recently in February 2011. He explained that the assaults stemmed at times from defendant's delusional belief that he was being raped by other patients and being targeted because of his race and sexual orientation.
Dr. Khan said that defendant's ability to recognize his symptoms and what triggers them had improved; and when he was not feeling paranoid, defendant was approachable and complied with his treatment program. Nevertheless, Dr. Khan testified that defendant remained delusional, and as a result lacked insight into his mental illness. He said that defendant's treatment reflected a cyclical pattern: he would participate in treatment and work well for a time; as he felt better, he would decrease his medication; he would stop his treatment; and then his symptoms would reappear. Recently, Dr. Khan had recommended a certain medication, but defendant refused to take it.
Defendant admitted that he suffered from paranoid schizophrenia. He said he attended Narcotics Anonymous meetings but denied having a substance abuse problem. Defendant claimed that recently he had been raped by other patients. He did not believe that it was a delusion even though hospital staff found no evidence of a sexual assault. Defendant explained that not all of his fights with other patients were his fault. He said that some were racially motivated. Defendant said he would take the drug recommended by Dr. Khan, and, if released, he would take his medication and continue his psychiatric treatment.
After hearing this testimony, the court found that defendant represented a substantial danger of harm to others due to a mental disease, defect, or disorder, sustained the petition, and extended defendant's commitment.
III. AN NGI COMMITMENT AND EXTENSION
Under the statutory scheme for NGI commitments, a defendant who has been committed to a state hospital after being found NGI may not be kept in actual custody longer than the maximum state prison term to which he or she could have been sentenced for the underlying offense. (§ 1026.5, subd. (a)(1).) At the end of that period, the district attorney can seek a two-year extension by filing may petition alleging that the defendant presents a substantial danger of physical harm to others because of his or her mental disease, defect, or disorder. (§ 1026.5, subds. (b)(1)-(2).) At that time, the court is required to "advise the person named in the petition of the right . . . of the right to a jury trial" (§ 1026.5, subd. (b)(3).) and conduct a jury trial "unless waived by both the person and the prosecuting attorney" (§ 1026.5, subd. (b)(4)). The person is "entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings," and all proceedings must "be in accordance with applicable constitutional guarantees." (§ 1026.5, subd. (b)(7).)*fn3
Defendant contends the court erred in failing to advise him of his right to a jury trial, accepting counsel's waiver, and conducting a bench trial without obtaining his personal and express waiver. He claims the errors violated his statutory rights and his state and federal constitutional rights to due process and equal protection. The Attorney General argues that the court properly conducted bench trial because as a rule, counsel has exclusive authority to waive a jury trial even over an NGI's objection.
As noted, subdivision (b)(3) requires a jury advisement when the petition is filed. The record reflects that the court did not directly advise defendant at the first hearing after the petition was filed; nor did the court do so at any time thereafter. This is understandable because when the petition was filed, defendant was at NSH; thereafter, defense counsel waived defendant's presence at all of the pretrial proceedings; the court did not order defendant's appearance for the purpose of an advisement; and defendant did not appear until the day of the bench trial. However, as we shall explain, the court's failure to advise does not compel reversal.
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.)
Clearly counsel knew that defendant had the right to a jury trial because he expressly waived it. Moreover, where, as here, counsel waives a defendant's presence at all 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. "Like 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).)" (In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 151-152 (John L.), italics added.) 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." (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 (Mary K.) [where no evidence to the contrary, court may presume counsel discussed jury waiver with client before waiving on client's behalf].)
Next, the record does not show that defendant was unaware of his right. On the contrary, it suggests otherwise. This was defendant's fifth extension trial. Moreover, the record reveals that when the district attorney sought the fourth extension, defendant waived his rights and agreed to the extension. In doing so, he signed a waiver form in which he stated that he knowingly and voluntarily waived his rights, including his right to a jury trial, after having conferred with counsel.
The record also does not show that defendant wanted a jury trial on the instant petition or that he did not authorize or agree to counsel's waiver or that he opposed or would have opposed counsel's waiver. "As a general rule, a stipulation of the attorney will be presumed to have been authorized by the client, as well in order to uphold the action of the court, as for the protection of the other party to the stipulation; but when the adverse party, as well as the court, is aware the attorney is acting in direct opposition to his client's instructions or wishes, the reason of the rule ceases, and the court ought not to act upon the stipulation, nor can the adverse party claim the right to enforce a judgment rendered by reason thereof." (Knowlton v. Mackenzie (1895) 110 Cal. 183, 188.)
Here, despite having been previously advised of his right to a jury trial and knowingly and intelligently waiving that right, defendant appeared in court and participated in the bench trial without objection or complaint. Under the circumstances, the record provides no basis to infer that defendant was unaware of his right to a jury trial or wanted a jury trial or that counsel overrode defendant's wish for a jury trial. Any such inferences would be speculation on our part.*fn5
Last, we note that a single opinion by a psychiatric expert that the defendant is currently dangerous due to a mental disorder can constitute substantial evidence to support the extension of a commitment. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165; People v. Bowers (2006) 145 Cal.App.4th 870, 879.)
Dr. Khan's testimony constituted overwhelming evidence to support a finding that defendant posed an unreasonable risk of harm to others due to his mental disorder. Defendant presented no opposing expert testimony. He did not impeach Dr. Khan in any respect. And he does not claim that Dr. Khan's opinion was speculative or that his testimony does not constitute substantial evidence. Under the circumstances, we do not find it reasonably probable defendant would have obtained a more favorable result had the court expressly advised him of his right to a jury trial on the record. (People v. Watson, supra, 46 Cal.2d at p. 836; cf. People v. McClellan (1993) 6 Cal.4th 367, 377, 378 [failure to advise about sex registration requirement harmless].)*fn6
IV. VALIDITY OF THE BENCH TRIAL
Defendant notes that subdivision (b)(3) requires that the court to advise "the person named in the petition" of the right to a jury trial; and subdivision (b)(4) requires the court to conduct a jury trial "unless waived by both the person and the prosecuting attorney." (Italics added.) According to defendant, these provisions mean that the right to a jury trial is "personal to the defendant," and therefore, the phrase "the person," especially in subdivision (b)(4), refers only to the defendant. Thus, he argues that the court must conduct a jury trial unless the defendant personally waives a jury. In other words, only the defendant can waive a jury trial, and, conversely, a waiver by counsel is not valid or effective.
In People v. Otis (1999) 70 Cal.App.4th 1174 (Otis), the court dealt with section 2966, subdivision (b), which requires a jury trial when a person challenges certification as a mentally disordered offender (MDO) unless the jury is "waived by both the person and the district attorney." There, 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. (Id. at pp. 1175-1176.)
In upholding counsel's waiver, the court found that "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. 177, italics added.)
In People v. Montoya (2001) 86 Cal.App.4th 825 (Montoya), the court reached the same conclusion concerning identical language in section 2972, subdivision (a), which requires a jury trial on an MDO commitment extension unless waived "by the person and the district attorney." There too, counsel waived a jury. (Id. at pp. 828-829.) In upholding counsel's waiver, the court followed Otis. It noted that the statutory language did not expressly require a personal waiver or clearly preclude a waiver by counsel. The court also agreed that the Legislature could not have intended to require a personal ...