People v. Fuquay, H037195

CourtCalifornia Court of Appeals
Writing for the CourtRUSHING
Citation156 Cal.Rptr.3d 170
PartiesThe PEOPLE, Plaintiff and Respondent, v. Maxwell Martin FUQUAY, Defendant and Appellant.
Docket NumberH037195
Decision Date14 August 2013

?156 Cal.Rptr.3d 170

The PEOPLE, Plaintiff and Respondent,
Maxwell Martin FUQUAY, Defendant and Appellant.


Court of Appeal, Sixth District, California.

Filed April 25, 2013
Review Granted August 14, 2013


Elia, J., concurred with opinion.

See 5 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Criminal Trial, § 818.

Santa Clara County, Superior Court No. C9945301, The Honorable Gilbert T. Brown. (Santa Clara County Super. Ct. No. C9945301)

Attorney for Defendant and Appellant Maxwell Martin Fuquay: Julia Freis, Santa Rosa, under appointment by the Court of Appeal for Appellant.
Attorneys for Plaintiff and Respondent The People: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Rene A. Chacon, Deputy Attorney General.
I. Statement of the Case

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).) 1 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.2 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).) 3

IV. Contentions

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.

V. Failure to Advise 4

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, 16 Cal.Rptr.3d 374, 94 P.3d 513.) 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, 299 P.2d 243.)

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, 105 Cal.Rptr.3d 424, 225 P.3d 554 ( 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, 135 Cal.Rptr.2d 553, 70 P.3d 981; Conservatorship of Ivey (1986) 186 Cal.App.3d 1559, 1566, 231 Cal.Rptr. 376; e.g., Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 272, 285 Cal.Rptr. 618 ( 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, 42 P. 580.)

Here, despite having been previously...

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