Trial Court: Santa Clara County Superior Court No.: 190802 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. 190802)
In 1996, the court found defendant Peter Freiderich Mortimer not guilty by reason of insanity (NGI) of assault with a deadly weapon, battery on a peace officer, and resisting arrest and committed him to the Department of Mental Health (Department) for treatment at Napa State Hospital (NSH). (Pen. Code, §§ 148, subd. (a), 242, 243, subd. (b), 245, subd. (a)(1), 1026.5, subd. (a).)*fn1 Since then, his commitment has been extended five times. (§ 1026.5, subd. (b).) On May 18, 2011, before the last extension expired, the Santa Clara County District Attorney filed a petition to extend it again. At a pretrial hearing on September 9, 2011, defense counsel advised the court that defendant wanted a bench trial. On October 20, 2011, after the trial, the court sustained the petition and extended defendant's commitment to December 5, 2013.
On appeal from the extension order, defendant claims 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. Teo Ernst, Ph.D., defendant's treating psychologist at NSH, testified as an expert in the diagnosis and treatment of mental disorders and risk assessment. He explained that defendant suffered from schizo-affective disorder, bipolar type, and poly-substance dependence. Defendant also had hepatitis C, diabetes, dyslipidmia, and tachycardia. In addition, he had "intellectual deficits" which caused problems with memory, concentration, attention and "executive functioning." These additional problems made it difficult for defendant to understand the factors that contributed to his violent conduct and hindered his ability to develop a plan to maintain stability and safety in the community. Defendant also continued to experience auditory and command hallucinations, including a recent hallucination in which a voice directed him push a nurse down some stairs. Defendant did not act on that hallucination. In addition, defendant reported having "acid flashbacks" which, according to Dr. Ernst, suggested that he had visual hallucinations as well.
Dr. Ernst testified that defendant had recently acknowledged having a mental disorder. However, he was unable to identify its symptoms without being prompted. Moreover, defendant still maintained delusional thinking about the circumstances of his commitment offense. Dr. Ernst reported that defendant had completed preliminary work on two parts of a wellness recovery action plan (WRAP), but the parts were disorganized and not yet integrated into a comprehensive plan. Defendant had also participated two groups run by Dr. Ernst, but he had trouble staying focused on course material and acting appropriately. Defendant had made progress in his substance abuse treatment and had maintained sobriety in the least restrictive environment at NSH. He understood the negative impact that drugs had had on him, and he had done substantial work on two relapse prevention plans. Nevertheless, he talked about all the drugs he could use in the community.
Dr. Ernst opined that defendant currently posed a substantial risk of danger to others. His opinion was based on defendant's failure to take medication without prompting, which increased the risk that he would not do so on his own. Dr. Ernst also noted defendant's cognitive limitations and disorganization. He said that defendant lacked insight into his drug use, the relationship between his mental illness and his violent behavior, and the symptoms of his mental disorder. He further noted that defendant lacked empathy for his victims and did not appreciate how dangerous he became when he was under the influence of drugs and alcohol and in a psychotic state. Dr. Ernst was also concerned that defendant would again use drugs and alcohol, which would substantially increase the risk that he would become destabilized, psychotic, and violent.
Defendant did not testify or present any evidence.
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 a 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 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).)*fn2
Defendant contends that the court erred in failing to advise him of the right to a jury trial. He argues that because the record does not contain evidence that he was advised by anyone, he could not have waived the right and was therefore erroneously denied a jury trial.
As noted, section 1026.5, subdivision (b)(3) provides, "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."
The record does not reflect that the court directly advised defendant when the petition was filed or did so at any time thereafter. The court's failure to comply with the statutory directive is understandable because when the petition was filed, defendant was at NSH, defense counsel thereafter 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 first appeared on the day of the bench trial. However, 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 advised the court that defendant wanted a bench trial. 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.) 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." (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].)
Furthermore, the record does not suggest that defendant was unaware of his right to a jury trial. This was defendant's sixth commitment extension proceeding. The record also does not suggest that defendant wanted a jury trial or was unaware that counsel intended to waive it. Indeed, when counsel did so, he said, "Mr. Mortimer would like a court trial," which, if anything, implies that counsel acted with defendant's knowledge and consent. Last, we note that when he appeared at trial, defendant did not object or express any concern or surprise that there was no jury.*fn3
Finally, a single opinion by a psychiatric expert that a 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. Ernst's opinion constitutes overwhelming evidence to support the order extending defendant's commitment. Defendant had a serious mental disorder, which he had only recently acknowledged, and suffered auditory and perhaps visual hallucinations. His intellectual deficits made it difficult for him to stay focused and understand his disorder, its symptoms, and its triggers, which in turn had hindered his ability to develop a comprehensive and integrated plan to maintain his stability in the community. He did not appreciate how dangerous he became when his symptoms appeared, and he needed prompting to take his medication. Moreover, although he had been ...