People v. Thomas
| Decision Date | 11 May 2012 |
| Docket Number | H036517 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FRANK HILL THOMAS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 78748)
Following the filing of a petition for an extended commitment under Penal Code section 1026.5, subdivision (b),1 and a court trial, the court ordered Frank Hill Thomas's commitment extended for an additional two-year period. Thomas appeals.
In a nutshell, appellant's contention is that, since civil commitment constitutes a significant deprivation of liberty protected by due process, due process entitles him to a trial by jury under both federal and state law unless he has explicit notice of the right and there is an express waiver of that right, either by himself or through counsel.2 Hemaintains that these due process "principles are embodied in Penal Code section 1026.5, subdivisions (b)(3) and (b)(7) . . . ." He asserts that "even if a personal waiver is not required, there was no waiver to a jury trial of any kind in the instant case." Appellant does not challenge the sufficiency of the evidence or raise any equal protection claim with respect to jury trial.
We affirm.
A petition to extend appellant's commitment pursuant to section 1026.5, subdivision (b), was filed on June 23, 2010. It stated that on January 24, 1981, appellant committed violations of section 288, subdivision (b), and (now former) section 12022.3, subdivision (a). Appellant was found not guilty by reason of insanity and committed to a state hospital. The petition indicated that appellant had been transferred to and remained at Napa State Hospital. It alleged that appellant, "by reason of mental disease, defect or disorder, continues to represent a substantial danger of physical harm to others, and continues to be a person described in paragraph (1) of section 1026.5(b) of the Penal Code."
Counsel for appellant appeared without appellant on July 30, 2010, August 26, 2010, October 1, 2010, October 22, 2010, November 19, 2010, December 10, 2010, and December 17, 2010. A settled statement of fact in this case states: Neither the deputy district attorney nor defense counsel had a recollection of "in-chambers or court discussions of whether and when [appellant] was advised of his right to a jury trial or if, when and how he waived that right."
On January 6, 2011, appellant appeared for trial. The People called two witnesses: Amrip Bal Saini, appellant's treating psychiatrist at Napa State Hospital, and appellant.
Dr. Saini testified that appellant, who was then 54 years old, had been diagnosed with schizophrenia, paranoid type, and pedophilia. Schizophrenia is an ongoing disorder that can affect a person's behavior, thoughts and actions. Dr. Saini considered it significant that appellant had denied having any mental disorder. As a consequence, appellant would not be aware of situations and triggers that might result in reoffending.
The 1981 commitment offense involved molestation of a 10-year-old female child using a knife. Records showed that appellant removed her pants, touched her genitals, and forced her to manually masturbate him. At various times, appellant had totally denied the offense or denied using a knife or weapon. Within the two years prior to trial, appellant had admitted to being there and drinking beer but he had claimed all he had been doing was urinating and the child had decided on her own to urinate as well. In May 2010, a Dr. Scilly conducted a three-hour interview of appellant and he had reported that appellant had ongoing fantasies and interest in young girls.
Appellant had not completed or made any significant progress on a "WRAP" plan. Dr. Saini thought appellant needed to do a lot of work to complete the "WRAP" plan. Dr. Saini also wanted appellant to complete a sex offender treatment program as recommended by CONREP but appellant had been unwilling. Appellant had said he was "done with his groups and his symptoms are in remission." Although Dr. Saini alsowanted and encouraged appellant to attend group therapy, appellant had not been "attending regular group therapy."
Appellant was taking psychotropic medication. His physical aggression had diminished as a result of the medication and appellant had not been physically aggressive in about three years. Dr. Saini thought it was possible that appellant would not comply with treatment if he was not committed to Napa State Hospital because at times in the past he had stopped taking his medication and he does not believe he has a mental disorder or needs medication. Appellant thought his medications were vitamins that gave him energy.
Dr. Saini disclosed that appellant was currently "manifesting delusions" that were "paranoid and persecutory." Appellant believed that he had been "set up" and "framed" for the offense and his doctors were conspiring against him. Other symptoms of his mental disorder include his apparent preoccupation and reaction to internal stimuli, as made evident by talking and mumbling to himself and smiling. He engaged in very limited social interaction and displayed anxiety and sometimes became aggressive without reason. When the offense or his pedophilia was discussed, appellant became stressed and his speech, his thought processes, and his behaviors sometimes became disorganized.
On a couple of occasions within the 12 months previous to trial, appellant had been rude to staff and used strong words. He had been "showing [a] threatening stance." For example, when a staff member went into a room to conduct a routine check of appellant and others, appellant stared, had a stiff body posture, and told the staff member to get out. In addition, at times, appellant mentioned killing if he had a gun. Dr. Saini indicated there was one instance when he made a shooting hand gesture toward staff. The previous February appellant had stated, "I would have a gun, and I would kill all of you and send you back to where you came from, you sons of bitches."
Dr. Saini indicated that they had discussed the requirements for being moved from the locked department into the open department at Napa State Hospital as well as the criteria for being discharged into the community. In Dr. Saini's opinion, appellant presented substantial risk of physical harm to others, specifically for the population of children less than 13 years of age. Symptoms of his mental disorders persisted and could lead to dangerous behavior.
Appellant testified that he was residing in Napa State Hospital and had been at that hospital since 1999. When asked about the commitment offense, he indicated that he was "supposedly in a schoolyard with a ten-year-old girl . . . ." He indicated that "there was no knife involved that was in a violent way on my behalf." He explained that he had lost his job and he was at the school to try to make some money by stealing bicycles and buying beer for minors. He denied pulling down the girl's pants or forcing her to manually masturbate him. Appellant claimed that all he did was ask her to take down her pants and she did. He indicated that he was hearing voices at the time.
Appellant acknowledged that he was sexually attracted to the girl but he asserted that he was no longer attracted to anyone who was not at or near his age. He indicated that the sexual offender treatment program was only available in an open unit, but he would be willing to do the program if he were in an open unit.
On cross-examination, appellant admitted that he suffered from a mental illness called paranoid schizophrenia and was taking Zyprexa, which controlled his symptoms. He stated that he would continue to seek psychiatric treatment if released from commitment and would continue to take Zyprexa in an unsupervised environment. He did not consider himself a danger to anyone. He agreed that he was remorseful for his actions in the 1980's and, that as long as he continued to take Zyprexa, he would not do anything like that.
The court found that appellant, "by reason of mental disease, defect or disorder, continues to represent a substantial danger of physical harm to others, and continues to be a person described in paragraph (1) of Section 1026.5(b) of the Penal Code." By order filed January 6, 2011, the court ordered appellant's commitment to be extended for an additional period of two years to January 23, 2013.
Respondent maintains that the law of the case doctrine forecloses appellant's due process argument. In our unpublished opinion in the appeal from the prior order of extended commitment, we concluded that appellant did not have a statutory or a federal due process right to a jury trial unless personally waived by him (No. H034006). (See Evid. Code, §§ 452, subd. (d), 459.)
" 'The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing court], in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . although in its subsequent...
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