Filed 1/30/01

CERTIFIED FOR PARTIAL PUBLICATION*

APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed.

Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant appeals the trial court’s finding that he is a mentally disordered offender (MDO).

I

FACTS AND PROCEDURAL HISTORY

On January 3, 1992, defendant pled guilty to one count of second degree robbery (Pen. Code, §  211), admitted the personal use of a firearm within the meaning of section 12022.5, and was sentenced to an aggregate term of seven years in state prison. On February 26, 1999, the district attorney filed a petition for extended involuntary treatment pursuant to section 2970. The petition alleged (1) that defendant had been committed to the Department of Mental Health as an MDO as a condition of parole, (2) that he was not in remission and could not be kept in remission without continued treatment, and (3) that by reason of his severe mental disorder he represented a substantial danger of physical harm to others. On April 20, 1999, after defense counsel and the court agreed that defendant had waived jury trial, the court found he was not in remission and ordered his commitment at Patton State Hospital until May 27, 2000.

On November 15, 1999, the district attorney filed a second section 2970 petition, this time based on a September 16 recommendation submitted by the medical director at Patton State Hospital and one of defendant’s treating psychiatrists, Dr. Sarla Gnanamuthu and Dr. George Procter, respectively. Hospital reports attached to the petition indicated that defendant had refused to cooperate in his treatment program, had been physically violent, and had made frequent violent and obscene threats against staff members and other patients. Specifically, defendant had threatened to stab and shoot staff members and invited them to "look at my rap sheet" if they did not believe him. On July 2, 1999, defendant hit a male staff member over the head with a chair, injuring the victim severely.

On December 10, 1999, the petition hearing was set for jury trial on January 31, 2000. On April 18, 2000, after a number of continuances and pretrial proceedings, the matter was set for bench trial. Defendant was not present at the proceeding when this was done. On April 25, at the beginning of the section 2970 hearing, defense counsel said, "I have waived jury." The court did not take an express jury waiver from defendant.

Psychiatrists George Proctor and Robert Moreno and psychologist Robert Suiter all testified that defendant fit the criteria of an MDO who was dangerous to others. Although defendant suffered from more than one mental disease, and although the doctors were uncertain as to the etiology of his various disorders and their relationship to his violent actions, they agreed that his primary diagnosis was schizophrenia. Dr. Proctor had reviewed defendant’s medical records from 1977, when he was first admitted to a psychiatric treatment facility, and had treated defendant for the month he was on "Unit 30" after he attacked the staff member. Dr. Proctor opined that defendant’s violent actions were the result of his schizophrenia. Dr. Suiter said he had interviewed defendant most recently on January 5, 2000, and had reviewed defendant’s most recent records, including the notes of other physicians. Dr. Suiter said defendant had schizophrenia and schizo-affective disorder. Dr. Moreno was in charge of the unit to which defendant was admitted on February 25, 2000. He had examined defendant himself and had reviewed the reports of other doctors. Dr. Moreno also was aware of an incident on March 14, 2000, in which defendant assaulted another inmate.

Defense counsel conceded that defendant had a severe mental disorder that was not in remission but argued that the district attorney had failed to prove beyond a reasonable doubt that defendant was a danger to others. The court found defendant met all the criteria of section 2970 and committed him to the continued care of the Department of Mental Health until May 27, 2001.

II

DISCUSSION

Defendant makes three allegations on appeal: that his constitutional rights were infringed because he did not personally waive his right to a jury trial, that there was insufficient evidence that he is an MDO, and that he received ineffective assistance of counsel (IAC).

A. Jury Waiver

Defendant argues at length, citing to numerous federal cases dealing with the Sixth Amendment jury trial rights of criminal defendants, that because he did not personally waive his right to a jury trial, his federal and state constitutional rights were infringed. The People reply that defendant’s arguments and citations are inapplicable to the situation here, where the attorney for an MDO waived defendant’s civil right to a jury trial on his behalf. We agree with the People that defendant’s reliance on criminal cases is misplaced and that the relevant case law does not support him.

Defendant is correct, of course, that in a criminal proceeding the right to a jury trial on the underlying charges is a federal and state constitutional right that must be waived by the defendant personally. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People v. Ernst (1994) 8 Cal.4th 441, 446.) In situations ancillary to criminal proceedings, where a jury trial right is merely statutory, the federal Constitution is generally not implicated, and the right may be waived by counsel. (See, e.g., People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5 [express waiver of statutory right to have same jury determine current charges and prior allegations not required]; People v. Masterson (1994) 8 Cal.4th 965, 972 [counsel may waive a client’s right to a jury trial in a competency proceeding, even over the client’s objection]; People v. Wims (1995) 10 Cal.4th 293, 309 [statutory right to jury determination of § 12022, subd. (b) allegation for purposes of sentence enhancement does not require express personal waiver of defendant]; People v. Vera (1997) 15 Cal.4th 269, 273, 279 [statutory jury trial right as to truth of prior alleged convictions is not of constitutional dimension and may be waived by counsel].)

Defendant is again correct that the California Constitution confers a right to trial by jury in civil cases (Cal. Const., art. I, § 16), but the Constitution also provides that "a jury may be waived by the consent of the parties expressed as prescribed by statute." Generally, this means an attorney or the client may waive jury trial in a civil case. (Zurich General Acc. & Liability Ins. Co. v. Kinsler (1938) 12 Cal.2d 98, 105, overruled on other grounds in Fracasse v. Brent (1972) 6 Cal.3d 784, 792; People v. Masterson, 8 Cal.4th, supra, at p. 974; People v. Harris (1993) 14 Cal.App.4th 984, 992.) Finally, in proceedings that are neither civil nor criminal, but "special proceedings," such as a competency hearing, the right to a jury trial may be waived by counsel, even over defendant’s express objection. (Masterson, supra, at p. 969.)

Although a section 2970 hearing, like a competency hearing, is something of a hybrid, a civil hearing with criminal procedural protections, it is nonetheless, as the statute clearly states and California courts have consistently agreed, a civil hearing. (§ 2972 subd. (a); People v. Myers (1996) 50 Cal.App.4th 826, 832; People v. Robinson (1998) 63 Cal.App.4th 348, 352; People v. Fernandez (1999) 70 Cal.App.4th 117, 126.) As a civil hearing, jury trial may thus be waived "as prescribed by statute." (Cal. Const., art. I, § 16.) The question then is whether the words "[t]he trial shall be by jury unless waived by both the person and the district attorney" in section 2972 mean defense counsel may waive jury trial on behalf of his client, as happened in the instant case. We think they do.

On this point, the People aptly cite the recent case of People v. Otis (1999) 70 Cal.App.4th 1174. The Otis court held that, in a competency hearing under section 2966, subdivision (b), identical words in that provision (which deals with procedures for a hearing on competency to stand trial) mean that defense counsel may waive his client’s right to trial by jury, even over the client’s objection. "[N]othing in the requirement that the waiver must be made by ‘the person’ precludes the person’s attorney from acting on his behalf. The Legislature did not say the waiver had to be made ‘personally.’" (Otis, supra, at p. 1176.)

Defendant tries, unsuccessfully, to distinguish Otis, which he says did not address his specific claim that, since the word "person" as used in other parts of section 2972 refers to the defendant personally, it must do the same in this sentence of subdivision (a). But the Otis defendant made a very similar argument regarding the use of the word "person" in other parts of section 2966, and the court did address the question in that context. The court noted that the rules of statutory construction cannot be applied to reach a conclusion "that is at odds with the intention of the Legislature." (People v. Otis, supra, 70 Cal.App.4th at p. 1177.) Thus, in light of the legislative purpose of a statute dealing with mentally disordered individuals, the court concluded: "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. That the Legislature specified a waiver of time could be by the petitioner ‘or his or her counsel’ does not lead us to conclude in the context of this statute that the petitioner must personally waive a jury." (Ibid.)

Similarly here, defendant did not contest that he was an MDO not in remission. The fact that the Legislature gave him other personal rights within the statute does not lead us to conclude that he had to personally waive his right to a jury trial in a civil proceeding. Moreover, the fact that the California Constitution, also in article I, section 16, says that a jury trial in a criminal proceeding must be waived by "defendant and defendant’s counsel" shows that the Legislature knows how to make clear when a personal jury waiver is required. No such language is present in the disputed sentence of section 2970. (See also People v. Masterson, supra, 8 Cal.4th 965 at p. 971.)

Although it is certainly conceivable, as defendant suggests, that a patient might be mentally disordered for some purposes and not for others, it is particularly difficult to sort those categories out in a case of schizophrenia, as all of the doctors testified. For whatever reasons (drug damage, inherited characteristics, other mental illnesses), defendant’s mind, as even his attorney admitted, did not function normally. Defendant’s poor judgment had been demonstrated by his aberrant behavior innumerable times over the years, most recently by his ill-considered decision to hit a staff member over the head with a chair and to threaten to kill staff members and fellow inmates. Thus there was no reason to believe that defendant was capable of making a reasoned decision about the relative benefits of a civil jury trial compared to a civil bench trial.

Nor does a jury trial right of this genre implicate the federal due process clause, as defendant claims. Defendant relies on Hicks v. Oklahoma (1980) 447 U.S. 343, but Hicks does not support him. In the very passage of Hicks cited by defendant, the Supreme Court stated: "Where . . . a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, [citation], and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State." (Id., at p. 346, italics added.) A jury sitting in a civil hearing pursuant to sections 2970 and 2972 does not impose criminal punishment and has no power to determine the extent to which the defendant will be deprived of his liberty. Defendant’s jury trial interest thus is, in this case, "merely a matter of state procedural law" and does not implicate the Fourteenth Amendment. (See also People v. Wims, supra, 10 Cal.4th 293 at p. 310, distinguishing Hicks in the context of section 12022.)

B. Sufficiency of the Evidence

In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses nor reweigh any of the evidence, and must draw all reasonable inferences and resolve all conflicts in favor of the judgment. (People v. Mercer (1999) 70 Cal.App.4th 463, 466; People v. Poe (1999) 74 Cal.App.4th 826; People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) Despite defendant’s insistence that there is insufficient evidence in the record to support a finding that he is a danger to others, the required third prong of section 2970, our review of the record reveals otherwise.

Defendant had a long list of violent crimes; as he suggested himself, one has only to look at his record to realize the depth of his proclivity to commit violence upon other people. Even in the hospital, under treatment with five psychotropic medications, he managed to seriously injure a staff member and almost assault another inmate just six weeks before the last hearing. Unlike defense counsel, we believe the prosecution did prove defendant’s danger to others beyond a reasonable doubt, just as the trier of fact found.

C. Ineffective Assistance of Counsel

Defendant’s last, lengthy, argument is that his counsel was ineffective. To prevail on an ineffective assistance of counsel claim, a defendant must show that counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms and that but for counsel’s failing, there is a reasonable probability that the result would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Wilson (1992) 3 Cal.4th 945, 950; In re Ross (1995) 10 Cal.4th 184, 201.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 575.) A deficient showing as to either Strickland prong is enough to defeat the claim: "[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . .  If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." ( Strickland, supra, at p. 697.)

Here, although we believe defendant met neither prong of Strickland, it is clear that defendant suffered no prejudice from the doctors’ unchallenged use of his medical records. Because the other evidence against him was so strong, there is virtually no likelihood that the outcome of the proceeding would have been different had counsel objected to the records. Each doctor who testified had interviewed or treated defendant and had found him to be both schizophrenic and dangerous. The past records and the doctors’ present testimony were unvaried in their consistency, documenting a stream of hospital admissions and aberrant behaviors that were the result of severe mental disorder. These included various paranoid delusions, including the hearing of voices; frequent episodes of violent and disorganized speech and behavior; and erratic and unreasonable reactions to minor frustrations, like hitting a staff member over the head with a chair when he did not receive a donut on his breakfast tray.

This last incident occurred while defendant was under Dr. Proctor’s direct care on Unit 30. Psychologist Dr. Suiter twice interviewed defendant (on December 20, 1999, and January 5, 2000) to determine his competency to stand trial on the assault with a deadly weapon charge that arose out of the chair incident. Although Dr. Suiter relied partly upon the report of a physician who examined defendant in January 2000, he also made his own observations and heard defendant’s inappropriate responses during the interviews. He noted that defendant had to be physically restrained during the interviews and felt that defendant’s medications were not efficacious. Dr. Suiter felt that defendant had further decompensated by the time of the second interview on January 5, 2000.

Dr. Moreno also reviewed defendant’s records and interviewed and treated defendant himself. Like the other doctors, he diagnosed defendant as schizophrenic. Although he had not directly observed defendant’s violent encounter with another patient, he was aware of its occurrence and did not believe it was an incident of self-defense. He could not say with absolute certainty that the attack was the result of defendant’s severe mental disorder, but, despite intense cross-examination, he also refused to say that the assault had nothing to do with defendant’s mental disorder. Instead, Dr. Moreno said it was possible that a mentally ill person could have a delusion that he was being attacked and so believe he was defending himself when he attacked and injured another. It seems to us that, no matter what defendant’s internal motives, the court was correct to conclude that he represented a danger to others.

Because each doctor had personal experience with defendant, as well as access to defendant’s extensive medical records, confidence in their testimony and in the outcome of the proceedings cannot be said to have been undermined. Defendant’s IAC claim fails.

III

DISPOSITION

The judgment is affirmed.

We concur:

P.J.

J.