People v. Thomas

Decision Date14 April 2014
Docket NumberH039417
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. FRANK HILL THOMAS, Defendant and Appellant.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

Frank Hill Thomas appeals from the January 22, 2013 commitment order extending his involuntary commitment pursuant to Penal Code section 1026.5.1 The petition to extend his commitment was submitted to the court for decision. He now asserts that the court issued its commitment order without any trial whatsoever and over his objections and without first judicially advising him and securing his express, personal waiver of his rights to a jury trial, confront and cross-examine witnesses, and present evidence on his own behalf.2 He also claims that the petition does not constitutesubstantial evidence supporting the commitment order. He maintains that, for all these reasons, this court must reverse the order.

We find that the record, viewed objectively, reflects that appellant's counsel, with appellant's assent, waived a jury and submitted the matter for decision by the court on appellant's behalf. We conclude that the submission for court decision was based on the documentary evidence underlying the petition, which appellant does not assert is insufficient to support the commitment order, and the submission constituted a court trial. In addition, we find, under the totality of circumstances, appellant voluntarily and knowingly waived his rights to confront and cross-examine adverse witnesses and to present evidence. Accordingly, we affirm the order.

IProcedural History

On July 13, 2013, the government filed a petition for extended commitment pursuant to 1026.5, subdivision (b), against appellant. The petition stated that appellant "committed violations of [former] Penal Code Sections 288(b) and 12022.3(a)" on January 24, 1981. It alleged that appellant's current commitment would expire January 23, 2013 and, by reason of mental disease, defect or disorder, appellant "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." It requested the court to extend his commitment for an additional two years. Subsequently, the following documents were filed under seal: the underlying Napa State Hospital request to file the petition, the affidavit of the Acting Medical Director of the hospital opining that appellant qualifies for an extension of commitment under section 1026.5, and the mental health report stating the evidence in support of such extension.

On July 18, 2013, appellant's counsel waived formal arraignment on the petition on behalf of appellant and appellant did not personally appear. The court told appellant's counsel that "if [appellant] wishes to be present would you notify the Court and at that time we will re-arraign him in person."

Appellant did not appear for subsequent pretrial matters. He was represented by Deputy Public Defender Andrea Randisi, who waived his presence on his behalf.

On August 3, 2012, the court stated on the record: "[P]ursuant to our discussions the matter will be continued to August 31st. Apparently he's thinking about whether or not he wants to have a trial or agree to the extension."

On August 31, 2012, the court indicated that appellant "does want to challenge the extension request" and it continued the matter until September 21, 2012.

On September 21, 2012, the court "put the matter over to October 12th for setting" pursuant to the in-chambers discussion.

On October 12, 2012, the court continued the matter until October 19, 2012 "for status" pursuant to the in-chambers discussion.

On October 19, 2012, the court continued the matter until November 16, 2012 "for status" pursuant to the in-chambers discussion.

On November 16, 2012, pursuant to the in-chambers discussion, the court issued an order to produce for January 17, 2013, scheduled a hearing on any in limine motions for January 18, 2013 at 1:30 p.m., and set jury trial for January 22, 2013.

A written order to produce appellant, filed January 4, 2013, directed the Sheriff of Santa Clara County to transport appellant to the county by January 17, 2013.

A minute order for January 18, 2013, shows that "M. Street" appeared on behalf of appellant in the morning and the scheduled appearance at 1:30 p.m. was vacated.

On January 22, 2013, appellant was present in court and represented by Deputy Public Defender Malorie Street. Appellant's counsel told the court that appellant hadinformed her on January 14, 2013 that he did not want a jury trial and he was satisfied with "the court reviewing the petition." She explained, however, that appellant wished to contest the extension on the ground that he had honored his NGI commitment and appellant "objects to the fact [a jury trial] was waived 31 years ago." Counsel stated that appellant "wanted a jury trial in the federal court and he believe[d] that the federal court should have heard his jury trial 31 years ago" and then she asked, "Is that accurate, Mr. Thomas?" Appellant replied "no" and said that it had happened "recently within the last four years" and indicated that the federal court wanted a filing fee from him.

Appellant's counsel tried to again explain her client's position. She indicated that appellant believed that the hospital had not fulfilled the original contract and he was asking to be released. The court then asked whether his counsel had "fairly state[d]" his feelings. Appellant answered "no" but his explanation is not entirely comprehensible. His grievance, as far as we can discern, it is that he did not have "a jury trial in the very beginning" "[w]hen [he] became a 1026." He complained that a couple of times he had been denied the right to have a jury trial, he had gone to the Supreme Court, and now he had "moved to federal court with it--."

The deputy district attorney and appellant's counsel agreed that the matter was being submitted for decision on the petition. The court stated that it had read the petition and, based on the petition, the court was satisfied beyond a reasonable doubt that the extension was appropriate and warranted and found the petition true. It ordered a two-year extension of appellant's commitment. Appellant's counsel asked the record to reflect that the extension of commitment was over appellant's objection and the court stated, "Noted."

A. Sufficiency of the Evidence

Appellant now asserts that there is not substantial evidence supporting the order of commitment because the petition was not evidence. Citing section 1026.5, subdivision (b)(2), respondent asserts that the petition impliedly included the affidavit of the acting medical director of Napa State Hospital opining that appellant qualifies for an extension of commitment and the supporting mental health report that set forth the factual basis for an extension of appellant's commitment. We agree with respondent in light of the statutory language, especially since ascribing such a literal meaning to the court's and counsel's words would lead to an absurdity.

A person found not guilty of a felony by reason of insanity (NGI) and committed may have his original commitment extended under section 1026.5, subdivision (b), if the person "by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1).) A petition for extended commitment must "state the reasons for the extended commitment, with accompanying affidavits specifying the factual basis for believing that the person meets each of the requirements set forth in paragraph (1)." (§ 1026.5, subd. (b)(2), italics added.) Here, the factual basis was set forth in documentary evidence filed under seal. Appellant does not suggest that those documents constituted insufficient evidence to support an extension of his commitment. The submission of the petition for decision impliedly was a submission on that documentation and, accordingly, it constituted a trial, despite appellant's appellate protestations to the contrary. (Cf. Bunnell v. Superior Court (1975) 13 Cal.3d 592, 604, 606.)

B. Failure to Advise and Obtain Express, Personal Waiver of Right to Jury Trial
1. Statutory Duties

Section 1026.5, subdivision (b)(3), provides in part: "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." Section 1026.5, subdivision (b)(4), states in pertinent part: "The court shall conduct a hearing on the petition for extended commitment. The trial shall be by jury unless waived by both the person and the prosecuting attorney."

Appellant contends the court failed to comply with its statutory duty to advise him of his right to a jury trial. Even assuming that the court erred by not giving the statutorily-required advisement regarding the right to jury trial (even though appellant waived his personal appearances through counsel before trial), any error must be regarded as harmless on this record. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Appellant was represented by counsel who, we presume in the absence of any indication to the contrary, was competent, informed as to applicable constitutional and statutory law, and adequately advised appellant of his rights, including his right to a jury trial. (See People v. Barrett (2012) 54 Cal.4th 1081, 1105; Conservatorship of John L. (2010) 48 Cal.4th 131, 151-152.) Further, it may be inferred from...

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