People v. Bailie

• Decision Date: 08 November 2006
• Docket Number: No. C051476.,C051476.
• Citation: 50 Cal.Rptr.3d 761,144 Cal.App.4th 841
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alexander Nathan BAILIE, Defendant and Appellant.

50 Cal.Rptr.3d 761

144 Cal.App.4th 841

The PEOPLE, Plaintiff and Respondent, v. Alexander Nathan BAILIE, Defendant and Appellant.

No. C051476.

Court of Appeal, Third District.

November 8, 2006.

Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Karen Keating Jahr, County Counsel, and David A. Hamilton, Deputy County Counsel, for Plaintiff and Respondent.

Bill Lockyer, Attorney General, Thomas R. Yanger, Senior Assistant Attorney General, Joseph O. Egan, Supervising Deputy Attorney General, and Catherine H. Brown, Deputy Attorney General, for Department of Developmental Services as Amicus Curiae on behalf of Plaintiff and Respondent.

RAYE, J.

Following a contested hearing, the Shasta County Superior Court, sitting without a jury, found that defendant Alexander Nathan Bailie is a mentally retarded person who is a danger to himself and others. (Welf. & Inst.Code, § 6500.)¹ Defendant was committed to the Department of Developmental Services (DDS) for one year.

On appeal, defendant contends reversal is required because (1) the trial court failed to advise him of his right to a jury trial or to secure his waiver of that right, and (2) the statutory scheme does not require, the petition did not allege, and the plaintiff (county counsel) did not prove that his mental retardation makes it seriously difficult for him to control his dangerous behavior. For the reasons that follow, we conclude both points have merit.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2005, at the request of the Director of the Far Northern Regional Center (FNRC), the Shasta County Counsel filed a section 6500 petition for an order committing defendant to DDS for care and treatment. The petition alleged that defendant "is a mentally retarded person who is a danger to himself or others," as set forth in the affidavit of an FNRC service coordinator. The facts supporting the petition are not at issue and need not be set forth in this opinion.

On October 25, 2005, the parties appeared in court on the petition. According to the clerk's minutes, defendant's counsel "advise[d] the Court that [defendant] is not in agreement with the Petition and is requesting the Court hold a contested hearing." The minutes make no reference to a jury trial.

The reporter's transcript does not contain the foregoing request for a contested hearing. Nor does the transcript contain an advisement of the jury trial right or defendant's waiver of that right.

At the hearing, county counsel presented the testimony of psychologist Jan Freemon, FNRC service coordinator Cynthia Nordstrom, and therapist Russell York, Ph.D. The defense presented testimony from defendant's mother and from defendant.

At the conclusion of the hearing, the trial court found that defendant "is kind of a danger to himself and others." Defendant was committed to DDS until October 25, 2006.²

DISCUSSION

I

Defendant contends reversal is required because the trial court failed to advise him of his right to jury trial or to secure his waiver of that right. We agree.

In People v. Alvas (1990) 221 Cal.App.3d 1459, 271 Cal.Rptr. 131 (Alvas), the defendant claimed his section 6500 commitment had to be reversed because the record failed to "show an advisement and waiver of the right to a jury trial on the issues of dangerousness and retardation ...." (Alvas, at p. 1462, 271 Cal.Rptr. 131.) This court concluded the contention had to be sustained "pursuant to both the equal protection and the due process clauses of the federal and state Constitutions (U.S Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)) and as a consequence this matter must be reversed and remanded for retrial." (Id. at p. 1463, 271 Cal.Rptr. 131.)

The equal protection violation was as follows: "Effective July 1, 1969, the Legislature enacted a sweeping revision of the mental health laws (§ 5000 et seq.), known as the Lanterman-Petris-Short Act (hereafter LPS Act). The LPS Act, which expressly excludes the mentally retarded (§ 5002), applies, inter aha, to those who as a result of mental disorder are a danger to themselves or others or are gravely disabled, and provides for 72-hour and 14day periods of detention for treatment and evaluation. (§§ 5150, 5170, 5200, 5225, and 5250.) If further detention is required, sections 5300, 5301, and 5304 provide the procedural mechanism for commitment and recommitment periods of 180 days each. With respect to these extended commitments, the trial court is statutorily required (§ 5302) to advise the defendant of his right to a jury trial on the allegations. No similar safeguard exists for those accused of being dangerously mentally retarded." (Alvas, supra, 221 Cal. App.3d at p. 1463, 271 Cal.Rptr. 131; italics added.) We held that "no compelling reason exists for the disparate treatment in involuntary commitments between the two classes by providing those alleged to come within the LPS Act with the procedural safeguard of advisement of the right to a jury trial while denying it to those defendants charged with dangerous mental retardation. We conclude that equal protection requires that a defendant in a section 6500 proceeding be advised of his right to a jury trial." (Id. at p. 1464, 271 Cal.Rptr. 131.)

After resolving the equal protection claim, Alvas stated that, "[although the parties have not so argued, we believe the same conclusion is compelled' under a due process analysis." (Alvas, supra, 221 Cal.App.3d at p. 1464, 271 Cal.Rptr. 131.) We explained: "The due process interest at stake is the defendant's personal liberty, a `"fundamental interest, second only to life itself ...."' [Citation.] In Duncan v. Louisiana (1968) 391 U.S. 145[, 88 S.Ct. 1444, 20 L.Ed.2d 491], it was held that in serious criminal cases, i.e., where the punishment was not less than six months and the offense otherwise qualified as petty, that liberty was such a fundamental interest that the Fourteenth Amendment's due process clause required that it be protected by the Sixth Amendment's guaranty of the right to a jury trial. [Citation.] In In re Gary W. [(1971) 5 Cal.3d 296, 96 Cal. Rptr. 1, 486 P.2d 1201], it was concluded that due process, as well as equal protection, required that in proceedings to extend the commitments of Youth Authority wards predicated upon their need for further treatment owing to their continuing dangerousness to the public due to mental or physical abnormalities (§ 1800), the wards were entitled to jury trials. In so holding, Gary W. observed that loss of liberty occasioned by involuntary confinement for treatment is not made less fundamental by virtue of its purpose, and that in extending the right to trial by jury to persons subject to civil commitment proceedings (§ 5303 of the LPS Act) the Legislature recognized that the interest involved was no less fundamental than that involved in criminal proceedings. [Citation.] [¶] Following the reasoning of the cited authority makes clear that the focus is on the resultant deprivation of liberty, rather than upon the procedural mechanism, be it designated civil or criminal, used in achieving that result. We think it is beyond dispute that the right to a jurytrial in adult involuntary commitment proceedings is a right of constitutional dimension. Where `a constitutional right exists it must be observed unless waived and ... a waiver implies, among other things, a knowledge that the right existed.' [Citations.] Consequently, a defendant proceeded against under section 6500 must be advised of his right to a jury trial." (Id. at pp. 1464-1465, 271 Cal.Rptr. 131 parallel citations omitted.)

The Shasta County Counsel requests that we revisit Alvas, based in part on the civil jury trial provisions of the California Constitution and statutes. Counsel notes that a Welfare and Institutions Code section 6500 commitment "must be deemed essentially civil in nature." (Cramer v. Tyars (1979) 23 Cal.3d 131, 137, 151 Cal. Rptr. 653, 588 P.2d 793.) Thus, article I, section 16 of our Constitution states that "[i]n a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute." Code of Civil Procedure section 631, subdivision (d)(4) provides that a jury may be waived "[b]y failing to announce that a jury is required, at the time the cause is first set for trial

County counsel's reliance on these provisions is misplaced. To the extent that Alvas's holding rests upon the federal equal protection clause, which proscribes the "disparate treatment in involuntary commitments between the two classes [LPS Act commitments and section 6500 commitments]," the minimum state standards for jury trial waiver in civil cases are not determinative. (Alvas, supra, 221 Cal. App.3d at p. 1464, 271 Cal.Rptr. 131.)

County counsel relies upon several cases in which the committed person's counsel expressly waived a jury trial. (People v. Masterson (1994) 8 Cal.4th 965, 974, 35 Cal.Rptr.2d 679, 884 P.2d 136 [proceeding to determine competency to stand trial]; People v. Montoya (2001) 86 Cal.App.4th 825, 828, 103 Cal.Rptr.2d 579 [mentally disordered offender proceeding]; Conservatorship of Maldonado (1985) 173 Cal. App.3d 144, 147, 218 Cal.Rptr. 796 [LPS Act proceeding].) These cases are not on point where, as here, there is no express waiver by defendant or by counsel. Moreover, none of those cases addressed a statutory provision, such as section 5302, that confers a statutory right to an advisement of the right to jury trial in certain cases, nor did those cases consider whether equal protection requires a similar advisement in a similar class of cases.

In People v. Rowell (2005) 133 Cal. App.4th 447, 34 Cal.Rptr.3d 843 (Rowell), the defendant cited Alvas and other authorities for the proposition that "the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings, and that the defendant in a commitment proceeding `"is entitled to the full...