Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 95953
Bamattre-Manoukian, ACTING P.J.
Defendant George Louis Bachmeier appeals from an order extending his commitment under Penal Code section 1026.5 for two years. He contends that he was improperly denied his right to a jury trial and that the court improperly failed to comply with the statutory deadline for conducting the trial. We disagree with these contentions and will, therefore, affirm the commitment order.
All further statutory references are to the Penal Code.
BACKGROUND
On December 20, 1983, defendant stabbed his stepfather in the eye with a small paring knife. His mother also received injuries while attempting to stop the assault. Criminal proceedings were instituted, charging defendant with assault with a deadly weapon with personal infliction of great bodily injury. (§§ 245, subd. (a)(1), 12022.7). He was admitted to Atascadero State Hospital (Atascadero) on February 24, 1984, after being found incompetent to stand trial. On March 27, 1986, he was found not guilty by reason of insanity (NGI) (see § 1026), and was thereafter readmitted to Atascadero. On October 11, 1990, defendant was placed under the supervision of the Santa Clara County Conditional Release Program (CONREP).
Defendant remained under the supervision of CONREP for the next 14 years with hospitalization at Napa State Hospital (Napa) various times for periods of two weeks to three months. On December 14, 2004, defendant was returned to Napa after an eight-month CONREP placement. He continued his assaultive and paranoid behavior at Napa. On April 10, 2007, defendant’s treatment team determined that, because of a mental disease, defect, or disorder, defendant represented a substantial danger of physical harm to others, and recommended that his maximum term of commitment be extended pursuant to section 1026.5. The Acting Medical Director of Napa sent a letter to the District Attorney of Santa Clara County on June 8, 2007, requesting that a petition be filed for extension of defendant’s commitment, which would expire on January 14, 2008.
The district attorney filed a petition for a two-year extension of defendant’s commitment on July 26, 2007. Defendant’s appointed counsel waived defendant’s appearance and requested the court continue the matter on August 15, 2007, August 24, 2007, October 5, 2007, October 12, 2007, October 19, 2007, November 16, 2007, and December 7, 2007. On January 4, 2008, defendant’s counsel “ask[ed] that his appearance be waived” and “ask[ed] that this matter be set for court trial on February 28th at 9:00.” The court granted the request. The matter was continued on February 28, 2008, at the request of the district attorney and with the agreement of defendant’s counsel, due to the illness of a scheduled witness. On February 29, 2008, the court set the matter for trial on April 1, 2008. On March 7, 2008, with the district attorney and defendant’s counsel present, the court vacated the April 1, 2008 trial date, finding that defendant could not be transported for trial on that date, and reset the matter for April 24, 2008.
The Court Trial
The court trial was held on April 24, 2008. Defendant was present with counsel, and did not object when the court stated “This is a court trial on the petition filed by the People.”
Toby Lamb, Ph.D., a staff psychologist at Napa, testified as an expert in psychological diagnosis and risk assessment as follows. He is on defendant’s treating team. He sees defendant informally every day and meets with him formally every month to discuss defendant’s treatment. He also reviews defendant’s treatment records and is familiar with defendant’s criminal history.
Defendant’s diagnosis is schizophrenia, paranoid type. Defendant has persecutory-type delusions: he tends to believe that people are out to harm him. On numerous occasions, defendant has told Dr. Lamb that he believes that he has already been released from the hospital by order of the court and that his treatment team and the police at Napa are involved in a conspiracy to keep him there. In addition, defendant does not interact much with his peers or staff. He becomes easily agitated and becomes verbally provocative or assaultive when he believes he is being mistreated or harmed.
Defendant does not acknowledge that he has a mental illness. As a result, he thinks that he does not need the medications that have been prescribed for him. If he stops taking his medications, “more than likely he will be more than just verbally aggressive toward people, he may become physically aggressive.” Defendant has been involved in mental health treatment of one form or another since 1983. He has been admitted numerous times to various psychiatric units, and several times to outpatient programs under CONREP. However, he has always had to be returned for in-patient treatment because of his inability to comply with the requirements of CONREP. He has not had any physical altercations for over a year but his attendance at treatment team meetings has been sporadic and he minimally participates in his group therapy sessions. At his latest treatment team meeting on April 10, 2008, defendant decided after about two minutes that he did not want to attend the meeting and left it without answering questions.
In Dr. Lamb’s opinion, defendant has not been restored to sanity under the law. His mental illness is still present. In addition, defendant represents a substantial danger of physical harm to others if unsupervised because he does not believe he has a mental illness, he does not think he needs medication, he does not appreciate the seriousness of his commitment offense, and he believes that the assault was justified. Defendant is not ready for outpatient treatment because he has not demonstrated an understanding of his mental illness and what he would need to do to remain psychiatrically stable outside the hospital. He would not reliably take his prescribed medication, nor would he reliably attend counseling.
After Dr. Lamb testified, defendant told the court that he would hire a therapist and take medication as directed by that therapist if he were to be released into the community. Defendant stated that he was taking medication at the time of the 1983 commitment offense, but the medication caused him to act out. He acknowledged that he has a mental disorder, but stated that it is not one that would cause him to act out towards others.
Defendant addressed the court from his seat without being sworn. He said nothing about wanting a jury trial.
The court found that defendant “need[s] to do more work in the hospital.” Therefore, the court found the petition true and extended defendant’s commitment as prayed for. The amended commitment order filed May 22, 2008, states in pertinent part: “The Court finds that [defendant], 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. [¶] It is hereby ordered that [defendant] remain at the facility in which he was confined at the time of the Petition herein, i.e., Napa State Hospital, and that said commitment shall be extended for an additional period of two (2) years from the date of January 14, 2008, to the date of January 14, 2010.” (Capitalization omitted.)
DISCUSSION
Right to Jury Trial
Defendant contends that the failure of the trial court to conduct a jury trial or to obtain a personal waiver from him of his right to a jury trial was reversible error. He argues that under section 1026.5, subdivisions (b)(3) and (7), he had a right to be personally advised of and to personally waive his right to a jury trial. He acknowledges that the appellate court in People v. Powell (2004) 114 Cal.App.4th 1153 (Powell), held that a waiver of a jury trial under section 1026.5 through counsel does not violate the defendant’s constitutional right to jury trial. He argues, however, that the analysis in Powell is “seriously flawed,” and that the facts in the case make it distinguishable. We disagree and, for the reasons stated in Powell, we find that the waiver of jury trial by counsel did not violate defendant’s constitutional rights.
In Powell, the defendant was present when his counsel waived jury trial. He later demanded a jury trial. When the trial court denied the request, stating that the defendant and already waived a jury, the defendant denied that he waived a jury, stating that his counsel had waived a jury, not he. Due to the defendant’s belligerence, the court later ordered the defendant removed from the courtroom and conducted the trial in his absence. (Powell, supra, 114 Cal.App.4th at p. 1157.) On appeal, the appellate court found no due process error.
“Section 1026.5, subdivision (b) provides that a two-year recommitment may be ordered where the trier of fact finds that the NGI committee poses a substantial risk of physical harm to others as a result of a mental disease, defect, or disorder.” (Powell, supra, 114 Cal.App.4th at p. 1157.) Section 1026.5, subdivision (b), states in pertinent part: “(3) 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.... [¶] (4) 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.... [¶]... [¶] (7) The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees....”
“[Defendant] contends that the right to jury trial, like jury trial in a criminal case, must be personally waived. (See Cal. Const., art. 1, § 16 [jury in criminal case must be waived ‘by the defendant and the defendant’s counsel’].) An extension trial, however, is civil in nature and directed to treatment, not punishment. [Citations.] ‘[A]lthough many constitutional protections relating to criminal proceedings are available in extension proceedings, the application of all such protections is not mandated by section 1026.5. The statutory language merely codifies the application of constitutional protections to extension hearings mandated by judicial decision.’ [Citation.] Notwithstanding section 1026.5, subdivision (b), the following constitutional rights have been held not applicable in a ‘not guilty by reason of insanity’ commitment extension trial: 1. Ex post facto, 2. privilege against self-incrimination, and 3. double jeopardy. [Citation.] We add to this list the personal waiver of jury trial.” (Powell, supra, 114 Cal.App.4th at pp. 1157-1158; but see People v. Haynie (2004) 116 Cal.App.4th 1224, 1227-1230 [privilege against self-incrimination bars prosecution from calling defendant to testify in its case-in-chief] (Haynie).)
The right to jury trial in an NGI extension trial is analogous to the right to a jury trial in a mentally disordered offender (MDO) proceeding (§ 2960 et seq.). (Powell, supra, 114 Cal.App.4th at p. 1159.) “An extension trial, like an MDO proceeding, is civil in nature.” (Ibid.) “The MDO statute states in pertinent part: ‘The trial shall be by jury unless waived by both the person and the district attorney.’ (§ 2966, subd. (b).)” (Powell, supra, 114 Cal.App.4th at p. 1159.) “People v. Otis (1999) 70 Cal.App.4th 1174,... held that jury in an MDO proceeding may be waived by counsel.” (Powell, supra, 114 Cal.App.4th at p. 1159.)
“The Legislature, in enacting section 1026.5, did not say that the jury waiver must be ‘personally’ made by the NGI committee. [Citations.]” (Powell, supra, 114 Cal.App.4th at p. 1159.) “An insane person who is ‘a substantial danger of physical harm to others’ (§ 1026.5, subd. (b)(1)) should not be able to veto the informed tactical decision of counsel. We do not deny the right to jury trial for such a person. We only limit the manner in which it may be invoked or waived.” (Powell, supra, 114 Cal.App.4th at p. 1158.) “[An] NGI committee who is not mentally competent must act through counsel. If the person is not competent to waive jury at the extension trial, his or her attorney may waive jury on his or her behalf.” (Ibid.) “Because the jury does not impose criminal punishment and has no power to determine the extent to which the person will be deprived of his or her liberty, a waiver of jury trial through counsel does not violate the person’s constitutional right to jury trial. [Citations.] We reject the argument that the jury waiver was ineffective or violated [defendant’s] due process rights.” (Id. at p. 1159; accord, Haynie, supra, 116 Cal.App.4th at pp. 1229-1230; People v. Givan (2007) 156 Cal.App.4th 405, 410-411 (Givan).)
In Givan, the defendant signed a declaration stating that he waived his rights to have a hearing, to appear in person at the hearing, to subpoena and question witnesses, and to present a defense, and that he agreed to a two-year extension of treatment. He requested that his counsel be allowed to appear on his behalf and to present his waivers to the court. Based on the defendant’s declaration, the court extended his commitment for two years. (Givan, supra, 156 Cal.App.4th at p. 409.) On appeal, the defendant contended in part that the waiver of his rights was invalid because there was no evidence in the record of his knowledge or waiver of his right to jury trial. (Id. at p. 410.) The appellate court found that the record showed “an implicit waiver of [the defendant’s] right to trial by jury,” (id. at p. 411) and held, citing Powell, that the defendant had “no right to veto his... attorney’s waiver of the right to trial by jury in a civil extension hearing.” (Id. at p. 410.)
In this case, as in Givan, defendant was not present when his appointed counsel waived a jury trial. However, defendant was required to act through counsel (see, e.g., § 1026.5, subd. (b)(7) [counsel shall be appointed for an indigent subject of an extension petition]) and defendant had no right to veto counsel’s waiver of his right to a trial by jury. “Like the protections of the double jeopardy clause and the ex post facto clause, the requirement of a personal waiver of the right to trial by jury has no application in a civil extension hearing.” (Givan, supra, 156 Cal.App.4th at p. 410.) No error or violation of due process has been shown.
Statutory Deadline for Trial
Defendant’s commitment expired on January 14, 2008, but the hearing on the petition to extend his commitment was not held until April 24, 2008. Defendant contends that “there was insufficient justification for this delay and the prejudice caused by the delay mandates that this court reverse the judgment of the trial court and order [him] immediately released.” Defendant states that he “does not contend that the prejudice was in the form of an unfair trial. Instead, [defendant] contends that the delay, itself, was inherently prejudicial and mandates reversal.”
The trial on a petition to extend a commitment under section 1026.5 must “commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless that time is waived by the person or unless good cause is shown.” (§ 1026.5, subd. (b)(4).) In this case, the district attorney filed its petition to extend defendant’s commitment almost six months prior to the expiration of defendant’s commitment. However, the matter was then continued seven times at defendant’s counsel’s request. On January 4, 2008, 10 days before defendant’s commitment was to expire, his counsel asked that the matter be set for trial eight weeks later, on February 28, 2008, which was almost six weeks after the expiration of defendant’s commitment. Thus, the “extension of the trial beyond defendant’s scheduled release date was due to his own counsel’s requested continuances, not to the People’s failure to comply with any statutory deadlines.” (People v. Fernandez (1999) 70 Cal.App.4th 117, 133 (Fernandez).)
“It is well established that the time limits of section 1026.5 are not jurisdictional.” (People v. Mitchell (2005) 127 Cal.App.4th 936, 943; § 1026.5, subd. (a)(2) [“The time limits of this section are not jurisdictional”].) However, due process considerations require an inquiry into whether the defendant was harmed by violation of the statutory time requirements. (Id. at pp. 943-944; People v. Johns (1981) 119 Cal.App.3d 577, 581.) “Except where there has been an extended delay,... prejudice will not be presumed from delay. Where prejudice is not presumed, it is incumbent upon the defendant to show circumstances of actual prejudice.” (Johns, supra, at p. 581.) We find, on the record before us, that defendant has suffered no prejudice or deprivation of due process from the violation of the 30-day rule in this case.
“Ultimately, the trial on the merits was concluded in one day. Except for the continuance[s] requested by defense counsel, the trial would have been completed before defendant’s release date. Although the trial court was within its discretion to grant the continuance[s] requested by defense counsel, defendant may not now claim prejudice from this same delay requested on his behalf. To allow otherwise would allow defendants to request numerous continuances for good cause, pushing the trial past the release date, and then claim prejudice from the continued trial.” (Fernandez, supra, 70 Cal.App.4th at p. 133.)
In the case before us, the trial court granted defendant’s counsel’s repeated requests for a continuance, and set the matter for court trial after defendant’s release date at counsel’s request. The matter was continued twice again, and the court trial was not held for another two months, not at defendant’s request but with the court implicitly finding, without objection from counsel, that there was good cause for the additional continuances. Because the record supports a finding that the trial could have and would have been held prior to defendant’s release date but for his counsel’s repeated requests for a continuance, defendant may not now claim prejudice from the delay of trial requested on his behalf. (Fernandez, supra, 70 Cal.App.4th at p. 133.)
DISPOSITION
The amended order for extended commitment filed May 22, 2008, is affirmed.
WE CONCUR: Mcadams, J., duffy, J.