People v. Thomas, No. H034006 (Cal. App. 5/6/2010)

• Decision Date: 06 May 2010
• Docket Number: No. H034006.,H034006.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANK HILL THOMAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. FRANK HILL THOMAS, Defendant and Appellant.

No. H034006.

Court of Appeals of California, Sixth Appellate District.

Filed May 6, 2010.

Appeal from the Superior Court, Santa Clara County, No. 78748.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

ELIA, J.

In 1983, Frank Hill Thomas was found not guilty of a felony (former Pen. Code, § 288, subd. (b)) by reason of insanity (NGI) and committed to a state hospital. He now appeals from the March 5, 2009 order extending his NGI commitment under Penal Code section 1026.5, subdivision (b), following a court trial.¹

Under section 1026.5, subdivision (b)(4), the trial on a petition for extended commitment of an NGI committee must "be by jury unless waived by both the person and the prosecuting attorney." Appellant argues that he had both a statutory right and a constitutional due process right to a jury trial unless personally waived by him and the trial court deprived him of those rights by not obtaining his personal waiver. He also maintains that principles of equal protection required the trial court to obtain his personal waiver of jury trial.

We reject appellant's contentions and affirm.

A. Procedural Background

On September 11, 2008, a petition to extend appellant's commitment pursuant to section 1026.5, subdivision (b), was filed.

On January 9, 2009, appellant's counsel appeared without appellant. The matter was set for a court trial on March 5, 2009.

On March 5, 2009, appellant and his counsel were present in the courtroom. The court announced, without objection, that the matter was set for a court trial on the petition that day. The People immediately called their sole witness, a staff psychologist at Napa State Hospital.

The court trial was underway and the People's expert witness was being examined when appellant's counsel indicated to the court that appellant wished to leave the courtroom. When questioned by the court, appellant complained that the witness was "not certified." When asked again whether he wanted to be present for the hearing, appellant said, "I wanted to be for a jury trial, and you are out of time with the date, too, the extension date." The exchange continued and appellant indicated that he did not want to stay and listen. The court indicated that appellant would be placed in the holding cell outside the courtroom and instructed appellant to "let us know in some fashion" if he changed his mind. Appellant stated, "I can get certified people and then maybe I will listen to you." Appellant was removed from the courtroom.

The People's expert witness testified that appellant had been diagnosed with schizophrenia and pedophilia. According to the expert, appellant had a history of not taking medication sometimes or thinking that he does not need medication. He had a consistent underlying paranoia. He consistently disobeyed rules and became verbally aggressive when admonished for misbehavior. Appellant also denied committing any sexual offense, denied having a mental disorder, and refused to participate in any sex offender treatment. The expert opined that appellant's mental condition caused him to have serious difficulty controlling his behavior and he currently represented a substantial danger of physical harm to others.

No witnesses were called on behalf of appellant.

B. No Statutory Right to Personally Waive Jury Trial

Appellant argues that the "clear and unambiguous" language of section 1026.5, subdivision (b), guaranteed him the right to a jury trial unless personally waived by him.² On appeal, respondent does not contend that the general forfeiture rule applies to this contention.³

The commitment of a person found NGI pursuant to Section 1026 may be extended beyond the prescribed maximum term of commitment (see 1026.5, subd. (a)(1) [defining "maximum term of commitment"]) "only under the procedure set forth in [section 1026.5, subdivision (b),] and only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others" (§ 1026.5, subd. (b)(1)) and the person has serious difficulty controlling his or her dangerous behavior (see People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159-1165;People v. Bowers (2006) 145 Cal.App.4th 870, 878; People v. Galindo (2006) 142 Cal.App.4th 531, 536-537; see also In re Howard N. (2005) 35 Cal.4th 117, 122, 132; Kansas v. Crane (2002) 534 U.S. 407, 412-413 ; Kansas v. Hendricks (1997) 521 U.S. 346, 358 ). When a petition for extended commitment is filed under section 1026.5, subdivision (b)(1), the court must "advise the person named in the petition of the right to be represented by an attorney and of the right to a jury trial." (§ 1026.5, subd. (b)(3).) The court must "conduct a hearing on the petition for extended commitment" and the trial must "be by jury unless waived by both the person and the prosecuting attorney." (§ 1026.5, subd. (b)(4).) Section 1026.5, subdivision (b), does not expressly require a personal waiver of the right to jury trial. (Cf. Welf. & Inst. Code, § 1801.5 ["trial shall be by jury unless the right to a jury trial is personally waived by the person"]; cf. also Cal. Const., art. I, § 16 ["A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel"].)

Appellant contends that section 1026.5, subdivision (b), implicitly establishes a right to personally waive jury trial since the court is required to advise "the person named in the petition" of the right to a jury trial (§ 1026.5, subd. (b)(1)), trial must be by jury trial "unless waived by both the person and the prosecuting attorney" (§ 1026.5, subd. (b)(4)), and "[t]he person" is "entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings" (§ 1026.5, subd. (b)(7)). We are not persuaded.

The general rule in both civil and criminal matters is that "a party's attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters." (In re Horton (1991) 54 Cal.3d 82, 94.) In a criminal case, "`[c]ounsel may waive all but a few fundamental rights for a defendant.' (People v. Riel (2000) 22 Cal.4th 1153, 1196 . . . .)" (People v. Hinton (2006) 37 Cal.4th 839, 873.) One of the fundamental rights that must be personally waived by a criminal defendant is the constitutional right to trial by jury. (See People v. Masterson (1994) 8 Cal.4th 965, 969; In re Horton, supra, 54 Cal.3d at p. 95.) But even a criminal defendant has no right to personally waive statutory rights to jury trial. (See People v. Vera, supra, 15 Cal.4th at p. 278 [state constitutional requirement of an express, personal waiver of jury trial does not apply to the statutory right to jury trial on the prior prison term allegations]; People v. Masterson (1994) 8 Cal.4th 965, 972 [counsel may waive the right to a jury trial in a competency proceeding]; cf. People v. Hinton, supra, 37 Cal.4th at pp. 874-875 [trial court not required to secure defendant's express, personal waiver of statutory right to a separate proceeding on the prior-murder-conviction special-circumstance allegation].) Recently, the California Supreme Court has concluded that, in an LPS conservatorship proceeding, that "[w]hen a statutory right in a civil commitment scheme is at issue, the proposed conservatee may waive the right through counsel if no statutory prohibition exists. [Citations.]" (In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 148 [court assumed that Probate Code section 1825 conferred upon a proposed LPS conservatee the general right to attend a conservatorship hearing].) In this case, while we assume the right to jury trial established by section 1026.5, subdivision (b)(4), belongs to appellant, we also observe that there is no express statutory prohibition against waiving the right through counsel.

In People v. Powell (2004) 114 Cal.App.4th 1153, an appellate court determined section 1026.5, subdivision (b), did not require a personal jury trial waiver. It observed that "[t]he Legislature, in enacting section 1026.5, did not say that the jury waiver must be `personally' made by the NGI committee. [Citations.]" (Id. at p. 1159.) We have located two other civil commitment provisions that establish a right to jury trial using language similar to that contained in section 1026.5, subdivision (b)(4), that appellate courts have construed.⁴ They are section 2966, subdivision (b), and section 2972, subdivision (a). Those provisions have been likewise held to not require a personal waiver of jury trial.

Section 2966, subdivision (b), authorizes a prisoner, who disagrees with the determination of the Board of Prison Terms that he or she qualifies as a mentally disordered offender (MDO) under section 2962, to file a petition for a hearing on whether he or she, as of the date of the Board of Prison Terms hearing, met the criteria of section 2962. It provides in pertinent part: "The trial shall be by jury unless waived by both the person and the district attorney." In People v. Otis (1999) 70 Cal.App.4th 1174, an appellate court determined that the section did not require a personal waiver of jury trial: "Section 2966 concerns persons who have been found by the Board of Prison Terms to be mentally disordered. The Legislature must have contemplated that many persons, such as Otis, might not be sufficiently competent to determine their own best interests. There is no reason to believe the Legislature intended to leave the decision on whether trial should be before the court or a jury in the hands of such a person." (Id. at p. 1177.) It stated: "Had the Legislature intended that waiver could only be made personally by the petitioner, the Legislature would have made its intent clear." (Id. at p. 1176.)

Section 2972, subdivision (a),...