People v. Tran

• Decision Date: 07 May 2013
• Docket Number: H036977
• Citation: 156 Cal.Rptr.3d 565
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dawn Quang TRAN, Defendant and Appellant.

156 Cal.Rptr.3d 565

The PEOPLE, Plaintiff and Respondent,

v.Dawn Quang TRAN, Defendant and Appellant.

H036977

Court of Appeal, Sixth District, California.

Filed May 7, 2013

Review Granted August 14, 2013

Carl A. Gonser under appointment by the Court of Appeal for Appellant, Attorney for Defendant and Appellant Dawn Quang Tran

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, Catherine A. Rivlin, Supervising Deputy Attorney General, Attorneys for Plaintiff and Respondent The People

RUSHING, P.J.

I. INTRODUCTION

Defendant Dawn Quang Tran pleaded not guilty by reason of insanity (NGI) to a sexual offense and was committed to a state mental hospital for treatment. ( Pen.Code, § 1026.5, subd. (a).)¹ Before the commitment expired, the Santa Clara County District Attorney filed a petition to extend it. ( § 1026.5, subd. (b).) At that time, the trial court was required to "advise the person named in the petition ... 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) ).

At a pretrial hearing, the court met with defense counsel and the prosecutor in chambers to discuss procedural matters. At that time, both parties waived a jury trial off the record. Thereafter, defendant appeared at the bench trial after which the court sustained the petition and extended his commitment.

On appeal, defendant claims he was denied the right to a jury trial because the court failed to advise him of his right to a jury and erred in accepting counsel's waiver. He argues that the court was required to obtain his express, personal waiver. The Attorney General counters that the bench trial was proper because, as a rule, counsel in NGI commitment cases has exclusive control over whether to have a bench or jury trial.

We conclude that section 1026.5 does not require an NGI's personal jury trial waiver. Counsel may waive a jury at the NGI's direction or with the NGI's knowledge and consent, and counsel may also do so even over a defendant's objection, particularly when the defendant is not sufficiently competent to determine what is in his or her best interests. To protect the right to a jury trial and ensure compliance with the statute, we further hold that when the court conducts a bench trial, the record must affirmatively establish the circumstances and validity of the jury.

II. STATEMENT OF THE CASE

In 1998, defendant Tran pleaded not guilty by reason of insanity to lewd and lascivious conduct with a child under 14.²

He was committed to a state hospital for treatment, and his commitment has been extended three times.³ On April 1, 2011, before the last extension expired, the district attorney filed a petition to extend it again. On May 12, 2011, after a bench trial, the court sustained the petition and extended defendant's commitment to June 19, 2013. Defendant appeals from the extension order.

We affirm the order.

III. THE JURY WAIVER AND EXTENSION TRIAL

A. WAIVER

Initially, the record on appeal did not reveal an advisement or express waiver. However, at the Attorney General's request, we directed the trial court to settle the record concerning an unreported, pretrial conference. (See Cal. Rules of Ct., rules 8.155 & 8.137.)

The court filed a settled statement. It reads, in pertinent part, "It was the custom and practice of [Honorable Gilbert T. Brown] to call the mental health calendar each Friday on the record. Prior to calling the calendar, all cases set were discussed in chambers. [¶].... On April 29, 2011, Respondent's counsel, Thomas Sharkey, Deputy Public Defender, stated in chambers that Respondent was not willing to submit to an extension of his commitment to the Department of Mental Health and wanted a trial. He also stated, that he, counsel, was requesting a court trial rather than a jury trial. The People were in agreement with having a court trial. Trial was set for May 12, 2011...."

B. THE EXTENSION TRIAL

At the extension trial, Dr. Eric Khoury, M.D., defendant's treating psychiatrist at Napa State Hospital (NSH), testified that defendant suffered from bipolar disorder

, which has at times been severe and caused psychotic episodes. Dr. Khoury explained that the disorder is a chronic condition, and controlling the symptoms requires the continued use of medication. Dr. Khoury said that although defendant was currently taking his medication, he vascillated between doing so and thinking he was cured. He said that defendant had not acknowledged that he would have to take medication for the rest of his life; rather, defendant said only that if medication is prescribed, he would take it. This and defendant's interest in being unconditionally released caused Dr. Khoury to be concerned that defendant would stop taking medication if he were not being closely supervised. Dr. Khoury opined that if defendant stopped, he would pose a danger to himself and others due to his mental disorder. He further argued that defendant would be ready for conditional release on outpatient status when he understood that he was not "cured," when he had developed the ability to recognize the signs of an onset of a manic episode, and when he understood that he had to take medication even when he felt better. Dr. Khoury noted that defendant currently was being evaluated for outpatient status and treatment, but that evaluation was not yet complete. At this time, NSH was not recommending outpatient status, and Dr. Khoury agreed that defendant was not ready for conditional release yet. Dr. Khoury opined that defendant's preference for unconditional release was unrealistic.

Defendant acknowledged that when he was first committed, he was mentally ill and had hallucinations. However, he believed that he was now fine. He said that if released, he would take his medication for the rest of his life. He admitted, however, that in the past, when he had felt fine and the doctor had refused to lower the dosage of his medication, he got angry and stopped taking it.

IV. 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).) As noted, when the petition is filed, the court must advise the defendant of the right to a jury trial and then conduct a jury trial unless both parties waive a jury. ( § 1026.5, subds. (b)(3) & (4).)

V. THE PARTIES' CONTENTIONS

As noted, defendant contends that the court erred in failing to give the required jury advisement, accepting counsel's jury waiver, and conducting a bench trial without obtaining his own express personal waiver. The Attorney General argues that the failure to advise and failure to obtain a personal waiver were not errors because once counsel was appointed, he assumed responsibility to advise defendant and enjoyed exclusive control over whether to have a bench or jury trial. Alternatively, the Attorney General argues that any alleged errors were harmless.

VI. FAILURE TO ADVISE ⁴

As noted, subdivision (b)(3) provides, "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."

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 in 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] revi...