Trial Court: Santa Clara County Superior Court No.: 205026 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. 205026)
Defendant Dawn Quang Tran pleaded not guilty by reason of insanity (NGI) to a sexual offense and was committed to a state mental hospital for treatment. (Pen. Code, § 1026.5, subd. (a).)*fn1 Before the commitment expired, the Santa Clara County District Attorney filed a petition to extend it. (§ 1026.5, subd. (b).) At that time, the trial court was 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)).
At a pretrial hearing, the court met with defense counsel and the prosecutor in chambers to discuss procedural matters. At that time, both parties waived a jury trial off the record. Thereafter, defendant appeared at the bench trial after which the court sustained the petition and extended his commitment.
On appeal, defendant claims he was denied the right to a jury trial because the court failed to advise him of his right to a jury and erred in accepting counsel's waiver. He argues that the court was required to obtain his express, personal waiver. The Attorney General counters that the bench trial was proper because, as a rule, counsel in NGI commitment cases has exclusive control over whether to have a bench or jury trial.
We conclude that section 1026.5 does not require an NGI's personal jury trial waiver. Counsel may waive a jury at the NGI's direction or with the NGI's knowledge and consent, and counsel may also do so even over a defendant's objection, particularly when the defendant is not sufficiently competent to determine what is in his or her best interests. 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 affirmatively establish the circumstances and validity of the jury.
II. STATEMENT OF THE CASE
In 1998, defendant Tran pleaded not guilty by reason of insanity to lewd and lascivious conduct with a child under 14.*fn2 He was committed to a state hospital for treatment, and his commitment has been extended three times.*fn3 On April 1, 2011, before the last extension expired, the district attorney filed a petition to extend it again. On May 12, 2011, after a bench trial, the court sustained the petition and extended defendant's commitment to June 19, 2013. Defendant appeals from the extension order.
III. THE JURY WAIVER AND EXTENSION TRIAL
Initially, the record on appeal did not reveal an advisement or express waiver. However, at the Attorney General's request, we directed the trial court to settle the record concerning an unreported, pretrial conference. (See Cal. Rules of Ct., rules 8.155 & 8.137.)
The court filed a settled statement. It reads, in pertinent part, "It was the custom and practice of [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. [¶] . . . . On April 29, 2011, Respondent's counsel, Thomas Sharkey, Deputy Public Defender, stated in chambers that Respondent 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 May 12, 2011 . . . ."
At the extension trial, Dr. Eric Khoury, M.D., defendant's treating psychiatrist at Napa State Hospital (NSH), testified that defendant suffered from bipolar disorder, which has at times been severe and caused psychotic episodes. Dr. Khoury explained that the disorder is a chronic condition, and controlling the symptoms requires the continued use of medication. Dr. Khoury said that although defendant was currently taking his medication, he vascillated between doing so and thinking he was cured. He said that defendant had not acknowledged that he would have to take medication for the rest of his life; rather, defendant said only that if medication is prescribed, he would take it. This and defendant's interest in being unconditionally released caused Dr. Khoury to be concerned that defendant would stop taking medication if he were not being closely supervised. Dr. Khoury opined that if defendant stopped, he would pose a danger to himself and others due to his mental disorder. He further argued that defendant would be ready for conditional release on outpatient status when he understood that he was not "cured," when he had developed the ability to recognize the signs of an onset of a manic episode, and when he understood that he had to take medication even when he felt better. Dr. Khoury noted that defendant currently was being evaluated for outpatient status and treatment, but that evaluation was not yet complete. At this time, NSH was not recommending outpatient status, and Dr. Khoury agreed that defendant was not ready for conditional release yet. Dr. Khoury opined that defendant's preference for unconditional release was unrealistic.
Defendant acknowledged that when he was first committed, he was mentally ill and had hallucinations. However, he believed that he was now fine. He said that if released, he would take his medication for the rest of his life. He admitted, however, that in the past, when he had felt fine and the doctor had refused to lower the dosage of his medication, he got angry and stopped taking it.
IV. 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).) As noted, when the petition is filed, the court must advise the defendant of the right to a jury trial and then conduct a jury trial unless both parties waive a jury. (§ 1026.5, subds. (b)(3) & (4).)
V. THE PARTIES' CONTENTIONS
As noted, defendant contends that the court erred in failing to give the required jury advisement, accepting counsel's jury waiver, and conducting a bench trial without obtaining his own express personal waiver. The Attorney General argues that the failure to advise and failure to obtain a personal waiver were not errors because once counsel was appointed, he assumed responsibility to advise defendant and enjoyed exclusive control over whether to have a bench or jury trial. Alternatively, the Attorney General argues that any alleged errors were harmless.
VI. FAILURE TO ADVISE*fn4
As noted, 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 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 in 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 fourth extension trial. In the appeal from his second extension order, defendant claimed that he was denied his right to a jury trial because he did not personally waive it. (People v. Tran, supra, H031976.) Moreover, he had a jury trial on his third extension. (People v. Tran, supra, H034743.)
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 claiming the denial of a jury trial in a previous appeal and having a jury trial on a previous extension petition, defendant appeared in court and participated in the bench trial without objection or complaint. Under the circumstances, the record before us 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 pure 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. Khoury's testimony constituted strong evidence supporting the court's order, and defendant presented no opposing expert testimony. Nor did he impeach Dr. Khoury in any respect. Moreover, defendant does not now claim that Dr. Khoury'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 ordered his presence at a pretrial hearing and directly advised him on the record 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
VII. VALIDITY OF THE BENCH TRIAL
As noted, defendant contends that the bench trial was invalid because the court erred in accepting counsel's waiver. He argues that subdivision (b)(4) requires an NGI's express, personal waiver. According to the Attorney General, however, the court properly accepted counsel's waiver because he had exclusive control over whether to have a bench or jury trial.
The federal and state Constitutions guarantee the right to a jury trial in criminal cases, and that right can be waived only by the defendant personally. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People v. Collins (2001) 26 Cal.4th 297, 304-308; People v. Ernst (1994) 8 Cal.4th 441, 446.) However, the right and the personal-waiver rule do not directly apply in NGI proceedings because such they are fundamentally civil, not criminal. (People v. Powell (2004) 114 Cal.App.4th 1153, 1157 (Powell); People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485 (Williams); cf. People v. Rowell (2005) 133 Cal.App.4th 447, 451 (Rowell) [constitutional right not applicable in civil proceedings to commit defendant as an sexually violent predator (SVP)]; People v. Montoya (2001) 86 Cal.App.4th 825 829-830 (Montoya) [same re proceeding to commit mentally disordered offender (MDO)]; People v. Otis (1999) 70 Cal.App.4th 1174, 1176 (Otis) [same].)
The federal Constitution also guarantees the right to a jury trial in civil cases, but that guarantee is not applicable to the states. (U.S. Const., 7th Amend. [right to a jury trial]; McDonald v. City of Chicago (2010) ___ U .S. ___, 130 S.Ct. 3020, 3034-3035, fn. 13 [not applicable to states]; Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 827 [same]; Hung v. Wang (1992) 8 Cal.App.4th 908, 927 [same].)
Likewise, the state Constitution guarantees the right to a jury trial in civil actions but only if the right existed at common law in 1850, when the Constitution was first adopted. (Cal. Const., art. I, § 16; C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8.) Civil commitment trials, such as an NGI trial, are "initiated by a petition independently of a pending action and are of a character unknown at common law." (Rowell, supra, 133 Cal.App.4th at p. 451; In re Raner (1963) 59 Cal.2d 635, 639.) Moreover, they are neither actions at law nor suits in equity and are instead considered "special proceedings." (Montoya, supra, 86 Cal.App.4th at p. 829; see Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d ...