Opinion
H044546
07-17-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANK HILL THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
Defendant Frank Hill Thomas was committed to the California Department of State Hospitals in 1983 after he was found not guilty of a felony by reason of insanity (NGI). His involuntary commitment has been extended numerous times pursuant to Penal Code section 1026.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified. This court granted a motion to take judicial notice of the court records in two prior appeals (People v. Thomas (Dec. 10, 2015, H041855) [nonpub. opn.]; People v. Thomas (Jan. 18, 2019, H043734) [nonpub. opn.]).
Thomas now argues that his appearance on March 14, 2017 by closed circuit television (CCTV) from Napa State Hospital violated his constitutional and statutory rights to be present at that day's proceedings. He challenges the court's determination on that date that he lacked the capacity to waive his right to a jury trial. Thomas also maintains that the trial court abused its discretion in denying his two Marsden motions, the second of which was heard on March 14, 2017. (See People v. Mardsen (1970) 2 Cal.3d 118.)
In addition, with regard to the March 14, 2017 trial on the petition to extend his commitment, Thomas contends that the trial court (1) violated his constitutional rights by "consider[ing] facts not in evidence," namely its observations of him during the proceedings, and (2) violated his right to due process by relying in part on inadmissible hearsay, which he had no opportunity to confront. Thomas further asserts that his counsel provided ineffective assistance by failing to object to the trial court's consideration of its observations of him and inadmissible hearsay in deciding to grant the petition.
Lastly, Thomas contends that the cumulative effect of the asserted errors was a denial of his right to due process.
We find no reversible error. Accordingly, the order of commitment is affirmed.
I
Procedural History and Facts
A petition for an extended commitment was filed on June 6, 2016 to extend Thomas's commitment for an additional two years, until January 23, 2019, pursuant to section 1026.5. The petition contains the following allegations. On January 24, 1981, Thomas committed violations of former sections 288, subdivision (b), (forcible lewd and lascivious act) and 12022.3, subdivision (a) (use of a deadly weapon in commission of the offense). After being found not guilty by reason of insanity, Thomas was committed to Atascadero State Hospital. Thomas had been transferred to and remained at Napa State Hospital. By reason of mental disease, defect or disorder, Thomas continued to represent a substantial danger of physical harm to others and continued to be a person described in section 1026.5, subdivision (b)(1).
On February 2, 2017, the trial court held a Marsden hearing and denied Thomas's request to appoint a different attorney to represent him. Thomas's counsel, in Thomas's presence and without objection by Thomas, waived his appearance at the February 10, 2017 hearing. The court indicated that since Thomas wanted to be transported for trial, it would issue a transportation order.
At the trial readiness hearing on February 10, 2017, defendant was not present. The minute order for that date indicated that the clerk would order a jury panel of 60 on February 24, 2017. The trial court issued an order to produce, requiring Thomas to be transported to Santa Clara County by February 24, 2017 for a February 27, 2017 jury trial.
On February 24, 2017, Thomas was not present. The District attorney requested a continuance to obtain and provide a supplemental declaration regarding Thomas's capacity to waive a jury trial. The court vacated the trial date, scheduled its receipt of a capacity declaration for March 3, 2017, set a trial date of March 14, 2017, and scheduled Thomas to participate in the trial by closed circuit videoconferencing from Napa State Hospital. Thomas's counsel confirmed that she would be in court on March 14, 2017.
At the hearing on March 3, 2017, Thomas was not present but his counsel made an appearance. The People filed a declaration concerning Thomas's capacity.
On March 14, 2017, there were several proceedings for which Thomas appeared by videoconferencing from Napa State Hospital. The trial court first held a hearing on Thomas's capacity to make a knowing and voluntary waiver of his right to a jury trial on the People's petition to extend his commitment. The court found that Thomas lacked such capacity. Thereupon, Thomas's counsel waived a jury trial.
The second hearing on March 14, 2017 was a closed Marsden hearing. After the hearing, the court found no grounds for granting a Marsden motion.
After the Marsden hearing, the trial court proceeded with a bench trial on the People's petition. After the close of evidence and argument, the court granted the petition. Thomas appeals from the written order, filed March 16, 2017, extending his commitment for two years, from January 23, 2017 to January 23, 2019.
II
Discussion
A. Thomas's Appearance from Napa State Hospital on March 14, 2017
1. Background and Thomas's Contentions
On March 14, 2017, the trial court described Thomas's appearance by way of two-way videoconferencing for the record: "Mr. Thomas is testifying from Napa State Hospital. And what I see is a computer screen or television screen about ten feet away from me, where I can see and hear Mr. Thomas clearly. [¶] In the left-hand corner there is a much smaller screen that shows me what Mr. Thomas sees when he looks at the screen. And that is a view of me on the bench, which includes the witness stand, which is why, when [Thomas's counsel] speaks to [him], she has to come around to sidebar, so that Mr. Thomas can both see and hear [her]."
Thomas now argues that the CCTV arrangement for his appearance on March 14, 2017 violated his constitutional and statutory rights to counsel or alternatively, that his counsel's failure to object to the arrangement constituted ineffective assistance of counsel. He further asserts that his remote appearance violated his constitutional and statutory right to be present for those proceedings. He asks this court to reverse the commitment order and remand the matter for a jury trial at which he is physically in the courtroom unless "he gives a knowing and voluntary waiver of his right to be present and his right to counsel."
2. Governing Law
Section 1026.5, subdivision (b)(7), provides in pertinent part: "The person [named in the petition for extended committed] 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." (Italics added.) The California Supreme Court has concluded that the italicized language states the broad rule that "NGI commitments call for procedural protections otherwise applicable in criminal cases." (Hudec v. Superior Court (2015) 60 Cal.4th 815, 828, fn. omitted (Hudec).)
" 'Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043. [Citation.]' [Citations.]" (People v. Jennings (2010) 50 Cal.4th 616, 681.) Specifically, under the California Constitution a "defendant in a criminal cause has the right . . . to have the assistance of counsel for the defendant's defense [and] to be personally present with counsel." (Cal. Const., art. I, § 15, italics added.) "[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." (Kentucky v. Stincer (1987) 482 U.S. 730, 745.) Consequently, although section 1026.5 does not expressly confer the right to be present at the trial to extend his commitment under the statutory language of section 1026.5, subdivision (b)(7), an NGI defendant has that right. (See Hudec, supra, 60 Cal.4th at p. 828.) 3. Analysis
Thomas's appointed counsel actively represented him throughout the proceedings on March 14, 2017. There is no suggestion in the record that Thomas was prevented from conferring with his counsel or vice versa while those proceedings were in progress. Thomas did not raise any objection to appearing at the proceedings by two-way video conferencing. It is conceivable, in the absence of contrary evidence, that it was Thomas's choice to remain at the hospital once he learned that Dr. Maqsood's current opinion was that he lacked the capacity to waive a jury trial.
The People argue, we think correctly, that Thomas forfeited his claims that his appearance through CCTV infringed on his constitutional rights to counsel and to be personally present on March 14, 2017 by failing to raise any objection at the time. "As the United States Supreme Court recognized in United States v. Olano [(1993)] 507 U.S. [725,] 731, ' "[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' [Citations.] 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 880-881, fn. omitted (Sheena K.).)
Although Thomas now claims that he was unable to interact or communicate with his counsel during the March 14, 2017 proceedings, the reporter's transcript reflects that he did speak directly to his counsel (and to the judge). In fact, the record indicates that the judge and the deputy district attorney left the room at one point to allow Thomas and his counsel to confer privately. After their off-the-record discussion, Thomas declined to testify at the trial on the petition to extend his commitment.
Moreover, "not all unwarranted interference with a client's ability to consult with counsel justifies a presumption of prejudice, requiring per se reversal." (People v. Hernandez (2012) 53 Cal.4th 1095, 1111; cf. Wright v. Van Patten (2008) 552 U.S. 120, 125 (per curiam) [United States Supreme Court's "precedents do not clearly hold that counsel's participation by speakerphone should be treated as a 'complete denial of counsel,' on par with total absence"].) Any potential interference with Thomas's ability to confer with counsel during the hearing and trial on March 14, 2017 resulting from the CCTV setup was not like the denial of counsel in Geders v. United States (1976) 425 US 80, 91 ["an order preventing petitioner from consulting his counsel 'about anything' during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment"] or the types of unconstitutional denial of counsel discussed in United States v. Cronic (1984) 466 U.S. 648 (Cronic). Cronic identified three circumstances warranting automatic reversal because prejudice is presumed: (1) where a criminal defendant was completely denied counsel at a critical stage of trial (id. at p. 659); (2) where counsel completely "fail[ed] to subject the prosecution's case to meaningful adversarial testing" (ibid.); and (3) where conditions surrounding the appointment of counsel "made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial" (id. at p. 661, fn. omitted). In the absence of circumstances of such magnitude, the standard established by Strickland v. Washington (1984) 466 U.S. 668 (Strickland) for establishing ineffective assistance of counsel governs an asserted denial of the Sixth Amendment right to counsel. (Cronic, supra, at pp. 659-660)
We assume that the Strickland standard applies in this civil commitment proceeding. Thomas has not shown that the CCTV setup caused his counsel's performance to be deficient. (See Strickland, supra, 466 U.S. at pp. 687-688.) Neither has Thomas shown that there is a reasonable probability that, but for his counsel's failure to object to the CCTV setup or to Thomas's physical absence at the proceedings, the result of any of the proceedings on March 14, 2017 would have been different. (See id. at pp. 687, 694, 700.) Since Thomas has not made the requisite showing of both deficient performance and prejudice, we must reject his claim that his counsel's failure to object to the CCTV arrangement constituted ineffective assistance. (Strickland, supra, 466 U.S. at pp. 687, 700.)
As to the right to be present at the March 14, 2017 proceedings, Thomas has not demonstrated that he did not voluntarily choose to participate in them by videoconference. Since the record is silent on this matter, we presume that Thomas made a voluntary decision to waive his physical appearance. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, Thomas was not entirely absent from the proceedings. Rather, his participation involved live, real-time, two-way communication by videoconference. Thomas's failure to assert his right to be present in person at the proceedings was an implicit waiver of the right. (Cf. United States v. Gagnon (1985) 470 U.S. 522, 528-529; Taylor v. United States (1973) 414 U.S. 17, 19-20.)
Even if we assume that the trial court erred by permitting Thomas to participate remotely in the March 14, 2017 proceedings, the statutory error does not warrant reversal of the judgment because it is not reasonably probable that the result of the trial and other proceedings would have been more favorable to Thomas absent the error. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Weaver (2001) 26 Cal.4th 876, 968 [the statutory error occasioned by "permitting a nondisruptive capital defendant to be absent during the taking of evidence" assessed under Watson standard of review]; see also People v. Cunningham (2015) 61 Cal.4th 609, 635 [although the defendant's absence during the guilt phase violated sections 977 and 1043, the error was harmless since the defendant "fail[ed] to explain how he could have effectively assisted counsel in subjecting the prosecution's case to meaningful adversarial testing"].) B. Thomas's Capacity to Waive a Jury
On appeal, Thomas asserts that the court used the wrong standard to determine whether he lacked the capacity to make a knowing and voluntary waiver of his right to a jury. Thomas argues that is true regardless of whether this court finds that the applicable standard is the one urged by him or the Dusky standard of competence to stand trial (see Dusky v. United States (1960) 362 U.S. 402 (per curiam) (Dusky)) urged by respondent. Thomas maintains that the proper standard was whether he had "the capacity to appreciate the nature of the right to a jury" and "the consequences of abandoning that right."
Under Dusky, the test of a criminal defendant's competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational and factual understanding of the proceeding against him. (Dusky, supra, 362 U.S. at p. 402.) It is not enough that a defendant is oriented to time and place and has some recollection of events. (Ibid.)
1. Evidentiary Hearing on Capacity
Three separate written declarations by Dr. Hasnain Maqsood were admitted at the hearing on capacity. Dr. Maqsood also testified at the hearing.
In a declaration executed on December 14, 2016, Dr. Maqsood indicated that he was a physician, who was "tasked with providing care" for Thomas at Napa State Hospital. It was then his opinion that although Thomas had been diagnosed with schizophrenia, Thomas had the capacity to waive his right to a jury trial. Dr. Maqsood's opinion was based on his belief that Thomas understood what a jury trial was and had "the capacity to provide informed consent about his medications."
In a declaration executed on February 15, 2017, Dr. Maqsood again stated that Thomas had been diagnosed with schizophrenia. But Dr. Maqsood's opinion as to Thomas's capacity to waive his right to a jury trial had changed. Dr. Maqsood's revised opinion that Thomas lacked such capacity was based on his determination that Thomas did not understand what a jury trial was and that he had no understanding of a jury's basic function, how a jury worked, or how a jury made its decision.
In a declaration executed on March 1, 2017, Dr. Maqsood reiterated that Thomas had been diagnosed with schizophrenia. The declaration stated Dr. Maqsood's continuing opinion that Thomas did not have the capacity to waive his right to a jury trial. His opinion was based on the circumstances that (1) Thomas did not agree with the charges against him and believed that they had been made up, (2) Thomas could not stay focused on a topic and had demonstrated poor tolerance for frustration, and (3) Thomas did not understand how a jury trial works or how it makes its decision. In Dr. Maqsood's opinion, however, Thomas understood what a judge, a public defender, and a "DA" were.
At the capacity hearing on March 14, 2017, Dr. Maqsood testified as an expert on the issues of capacity and psychiatry. Dr. Maqsood stated that he was a board-certified psychiatrist and a staff psychiatrist at Napa State Hospital, where he had worked since November 1, 2014. He worked mainly with patients who had been found not guilty by reason of insanity.
Dr. Maqsood disclosed that Thomas had been under his care at Napa State Hospital for almost two years and that Thomas suffered from schizophrenia and pedophilic disorder. Dr. Maqsood stated that when he had evaluated Thomas in December 2016, Thomas had "understood some basic things about the court procedures." Dr. Maqsood had merely asked Thomas some superficial questions about jury trial. Thomas then understood that a jury was a group of people who made decisions about him. That evaluation was the basis for his first declaration. Dr. Maqsood testified that an individual's capacity can change over time.
Between his execution of the first declaration and the second declaration, Dr. Maqsood talked to Thomas in more detail. After considering Thomas's capacity in more depth, Dr. Maqsood's opinion changed.
After his execution of the second declaration in February of 2017 and before his execution of the third declaration in March of 2017, Dr. Maqsood attempted to have a more detailed, follow-up discussion with Thomas on the jury trial issue. When asked whether Thomas had exhibited any symptoms of active psychosis during that meeting, Dr. Maqsood indicated that Thomas had a delusional belief that "he was a security guard at the school," impliedly where the underlying offense had occurred. Thomas had cursed Dr. Maqsood and refused to engage any further. Dr. Maqsood noted that Thomas had been observed talking to himself "on a regular basis."
Dr. Maqsood's current opinion was that Thomas lacked the capacity to waive his right to a jury trial and that Thomas did not understand the relevant information, including how a jury works. Thomas had not accepted responsibility for his offense and believed that all he needed was a trial by a jury, which would find in his favor. Thomas had been unable to have a reasonable discussion about his upcoming trial, and when Dr. Maqsood had tried to discuss the matter, Thomas usually left the room or cussed or threatened Dr. Maqsood or other staff members.
Dr. Maqsood indicated that Thomas's presentation had not really changed over the past two years. Thomas remained "quite treatment-resistant," and his thought process remained "very disorganized" and often became "tangential" and unfocused. Thomas was so disorganized due to his chronic mental illness that it was "very hard to engage in meaningful conversation" with him. Thomas was "chronically psychotic." Dr. Maqsood and other staff members had observed Thomas talking in response to internal stimuli.
A couple of weeks before March 14, 2017, Dr. Maqsood's treatment team conferred with defendant to ascertain his understanding of a jury trial. According to Dr. Maqsood, Thomas just believed that he needed a jury trial and a new lawyer and would not talk about it.
Dr. Maqsood explained that he usually considered a patient's capacity with respect to making decisions about medication. Using that model for deciding capacity, he considered whether Thomas (1) understood the relevant information, (2) appreciated "the situation and the consequences," (3) was able to reason, and (4) was able to make clear choices. Dr. Maqsood indicated that Thomas was not able to reason about his medical decisions, as evidenced by his refusal to do lab work all the time, his refusal to go to dental and other medical appointments, and his inability to comply with the requirements of some medications that Dr. Maqsood had offered. Thomas was unable to have a logical conversation about his treatment with his treatment team.
Under California law and common law, a competent adult has the right to refuse medical treatment, including the administration of antipsychotic drugs and even treatment necessary to sustain life. (In re Qawi (2004) 32 Cal.4th 1, 14 (Qawi).) But the California Supreme Court has held that an involuntarily committed patient may not refuse medication if the patient is "determined to be incompetent, that is, incapable of making rational decisions about his own medical treatment." (Id. at p. 20; see id. at p. 27 ["an MDO can be compelled to be treated with antipsychotic medication" if the MDO "is determined by a court to be incompetent to refuse medical treatment"].) In Qawi, the Supreme Court recognized that in Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1322-1323, an appellate court "opined that '[j]udicial determination of the specific competency to consent to drug treatment should focus primarily upon three factors: (a) whether the patient is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention . . . ; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought ([Welf. & Inst.Code,] § 5326.2) and otherwise participate in the treatment decision by means of rational thought processes.' [Citation.]" (Qawi, supra, at pp. 17-18.)
In Dr. Maqsood's opinion, Thomas's understanding of a jury trial was very superficial. Thomas did not appreciate the situation in that he "just believe[d] firmly" that the jury would find in his favor and did not realize that a jury could decide against him as well. He had become fixated on having a jury trial and "just ke[pt] on saying that he needs a jury trial." Dr. Maqsood believed that Thomas failed to understand that a jury engaged in a deliberative process of listening to and weighing testimony and applying the law to the facts. Thomas was "not very clear" about what issue a jury would decide at the upcoming trial. Thomas believed that he had done nothing wrong and that a jury was "going to set him free." In Dr. Maqsood's opinion, Thomas did not understand how a jury functions.
Dr. Maqsood testified that Thomas had some fixed, longstanding delusions. He continued to believe that he had done nothing wrong, that he did not have a mental illness, that someone had tampered with police documents, and that court documents filed in his case had been faked, manipulated, or changed. Thomas believed that he had been locked up at Napa State Hospital against his will. Thomas had a history of chronic schizophrenia but had no insight into his illness.
It was Dr. Maqsood's opinion on March 14, 2017 that Thomas lacked the capacity to make a knowing, intelligent, and voluntary waiver of his right to a jury trial.
Thomas's counsel argued that Thomas had a basic understanding of the jury system and that it was up to the trial court to decide the "depth of knowledge" required to allow a defendant to invoke the right to a jury trial. The deputy district attorney argued that Thomas may know he wants a jury trial but he does not "really understand[] why he wants that" and lacked an "in-depth understanding" of what a jury would be deciding. He contended that although Thomas denied having a mental illness, he was delusional, talked to himself, had recently threatened hospital staff, and had had outbursts during the current capacity hearing.
The trial court found that Thomas was "not clear" that a jury would not "decide his guilt or innocence of the underlying offense." He was "not clear" about what a jury would be doing. Based on the evidence before it, including Dr. Maqsood's opinion regarding capacity, the court concluded that Thomas lacked the capacity to waive a jury trial. The court indicated that it was aware of the Tran and Blackburn cases. (See People v. Tran (2015) 61 Cal.4th 1160 (Tran); People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn).)
2. Governing Law
Section 1026.5, subdivision (b)(4), "makes clear that '[t]he trial shall be by jury unless waived by both the person and the prosecuting attorney.' (Italics added.) The statute does not require the [NGI] defendant to affirmatively show he or she wanted a jury trial; a jury trial is the default procedure absent a personal waiver." (Tran, supra, 61 Cal.4th at p. 1169.) In Blackburn and Tran, the California Supreme Court set out the proper procedure applicable to the jury waiver decision in proceedings to extend the involuntary commitments of MDO (mentally disordered offender) defendants and NGI defendants, respectively.
In Blackburn, the Supreme Court stated that "the trial court must advise the MDO defendant personally of his or her right to a jury trial and, before holding a bench trial, must obtain a personal waiver of that right from the defendant unless the court finds substantial evidence—that is, evidence sufficient to raise a reasonable doubt—that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision." (Blackburn, supra, 61 Cal.4th at p. 1116.) The Supreme Court explained that "evidence is substantial when it raises a reasonable doubt about the defendant's capacity to make a knowing and voluntary waiver . . . ." (Id. at p. 1130.) The court made clear that once "the trial court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, . . . control of the waiver decision belongs to counsel." (Ibid.)
In Tran, the California Supreme Court held that parallel statutory language (see § 1026.5, subds. (b)(3) & (b)(4)) has the same meaning and construction in proceedings to extend the involuntary commitment of an NGI defendant. (Tran, supra, 61 Cal.4th at pp. 1163, 1167.) The court held: "In a section 1026.5, subdivision (b) commitment extension hearing, the decision to waive a jury trial belongs to the NGI defendant in the first instance, and the trial court must elicit the waiver decision from the defendant on the record in a court proceeding. But if the trial court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, then control of the waiver decision belongs to counsel, and the defendant may not override counsel's decision. In this context, evidence is substantial when it raises a reasonable doubt about the defendant's capacity to make a knowing and voluntary waiver, and the trial court's finding of a reasonable doubt must appear on the record." (Id. at p. 1167, italics added.)
In Tran, the Supreme Court "presume[d] the Legislature was aware that many NGI defendants lack the capacity to make a knowing and voluntary waiver of their right to a jury trial, and [it] did not intend courts to obtain a jury trial waiver from such persons." (Tran, supra, 61 Cal.4th 1167.) But the Supreme Court did not agree that "courts can infer that nearly every NGI defendant in a commitment extension proceeding lacks the capacity to make a knowing and voluntary waiver from the preliminary showing that must accompany an extension petition. (See § 1026.5, subd. (b)(2).)" (Ibid.) Similarly, the Supreme Court in Blackburn rejected the contention that courts "can infer that nearly every defendant in an MDO commitment extension proceeding lacks the capacity to make a knowing and voluntary waiver from the preliminary showing required for the district attorney to file an extension petition. [Citation.]" (Blackburn, supra, 61 Cal.4th at p. 1128.)
The Supreme Court observed in both Blackburn and Tran that the proposed committee necessarily had been previously found competent to stand trial, implicitly in the prior criminal proceedings. In Blackburn, supra, 61 Cal.4th at p. 1129, the court stated: "By definition, every mentally disordered offender has previously been deemed competent to stand trial, and the premise of the MDO statute is that severe mental disorders are 'treatable.' [Citations.] . . . The potentially transitory and treatable nature of mental illness and the potentially limited areas of functioning impaired by such illness preclude any categorical inference that an MDO defendant facing a commitment extension proceeding cannot competently decide whether to waive a jury trial." In Tran, supra, 61 Cal.4th at p. 1167, the court stated that "any person found 'insane at the time the offense was committed' is necessarily a person previously deemed competent to stand trial (§ 1026, subd. (a)), and the entire premise of the NGI commitment scheme is that the defendant's mental disease, defect, or disorder is treatable (§ 1026.5, subd. (b)(11)) and that the defendant's sanity may be 'recovered fully' (§ 1026, subd. (a)) or 'restored' (§ 1026.2, subd. (a))." As the Supreme Court observed in Blackburn, "the conditions that result from a mental illness or related disorder, 'though they include imminent dangerousness, do not necessarily imply incompetence or a reduced ability to understand, and make decisions about, the conduct of the proceedings.' [Citations.]" (Blackburn, supra, at pp. 128-1129.)
In the criminal context, "a defendant's waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, ' " 'made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,' " ' as well as voluntary ' " 'in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.' " ' [Citations.]" (People v. Collins (2001) 26 Cal.4th 297, 305, fn. omitted.) The California Supreme Court has stated that "a knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the consequences of forgoing this right. [Citation.]" (People v. Sivongxxay (2017) 3 Cal.5th 151, 171.)
In general, "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." (Brady v. United States (1970) 397 U.S. 742, 748, fn. omitted.) "The purpose of the 'knowing and voluntary' inquiry . . . is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. [Citations.]" (Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12 (Godinez).)
The United States Supreme Court has clarified that perfect knowledge is not required to effect a waiver of a constitutional right. (See United States v. Ruiz (2002) 536 U.S. 622, 630-631 ["the [United States] Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge . . . , but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. [Citations.]"], 629 ["the [United States] Constitution does not require the prosecutor to share all useful information with the defendant" and "the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specific detailed consequences of invoking it"]; North Carolina v. Alford (1970) 400 U.S. 25, 31 ["The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. [Citations.]"].)
However, the question whether a person has the mental capacity to make a knowing and voluntary waiver of a right to a jury trial is distinct from the inquiry whether a particular waiver was knowing and voluntary.
3. Capacity to Waive a Jury Trial
Tran and Blackburn did not expressly define capacity to make a knowing and voluntary waiver of the right to a jury trial. We find United States Supreme Court decisions concerning a defendant's competency to stand trial or to waive the right to counsel instructive.
In Dusky, 402, the United States Supreme Court held that the standard for a criminal defendant's competence to stand trial is (1) whether the defendant has " 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and [(2)] whether he has a rational as well as factual understanding of the proceedings against him.' " (Dusky, supra, 362 U.S. 402.)
In Rees v. Peyton (1966) 384 U.S. 312 (per curiam), the United States Supreme Court retained jurisdiction and directed the federal district court to determine the mental competence of the petitioner, who was a capital inmate, after the petitioner "directed his counsel to withdraw the petition and forgo any further legal proceedings." (Id. at p. 313.) His counsel had advised the court that "he could not conscientiously accede to [his client's] instructions without a psychiatric evaluation of [his client] because evidence cast doubt on [his client's] mental competency." (Ibid.) The Supreme Court instructed the lower court to determine whether the petitioner possessed the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." (Id. at p. 314, italics added.)
In Drope v. Missouri (1975) 420 U.S. 162, the Supreme Court reiterated the standard of competence to stand trial: "It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." (Id. at p. 171.) It explained that "a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry [into competency to stand trial] is required." (Id. at p. 180.)
Subsequently, in Godinez, the Supreme Court held that the competency standard for pleading guilty or waiving the right to counsel is not higher than the competency standard for standing trial. (Godinez, supra, 509 U.S. at p. 391.) The court stated that "even assuming that there is some meaningful distinction between the capacity for 'reasoned choice' and a 'rational understanding' of the proceedings, we reject the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard." (Id. at p. 398.) The court noted that it had "used the phrase 'rational choice' in describing the competence necessary to withdraw a certiorari petition, Rees v. Peyton, 384 U.S. 312, 314 (1966) (per curiam) but [found] no indication in that opinion that the phrase means something different from 'rational understanding.' " (Id. at p. 398, fn. 9.)
The Supreme Court in Godinez observed that "[a criminal] defendant who stands trial is likely to be presented with choices that entail relinquishment of the same rights that are relinquished by a defendant who pleads guilty," including the right to trial by jury. (Godinez, supra, 509 U.S. at p. 398.) The court could "conceive of no basis for demanding a higher level of competence for those defendants who choose to plead guilty." (Id. at p. 399.) The court reasoned that "[i]f the Dusky standard is adequate for defendants who plead not guilty, it is necessarily adequate for those who plead guilty." (Ibid., italics added.) The court concluded that "while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial." (Id. at p. 398.)
The Supreme Court further decided in Godinez that a criminal defendant who waives his right to the assistance of counsel is not required to "be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights." (Godinez, supra, 509 U.S. at p. 399.) It clarified that "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." (Ibid., fn. omitted.) Citing its decision in Faretta v. California (1975) 422 U.S. 806, the court pointed out that "the defendant's 'technical legal knowledge' is 'not relevant' to the determination whether he is competent to waive his right to counsel [citation]" (Godinez, supra, at p. 400) and that "while '[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts,' . . . a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation." (Ibid., fn. omitted.)
The United States Supreme Court subsequently determined that the federal Constitution does not prohibit a state from insisting that a criminal defendant proceed to trial with counsel where the court found the defendant "mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself." (Indiana v. Edwards (2008) 554 U.S. 164, 167.) The court recognized that "[i]n certain instances an individual may well be able to satisfy Dusky's mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel. [Citations.]" (Id. at pp. 175-176.) The court pointed out that "the Godinez defendant sought only to change his pleas to guilty" (id. at p. 173) and "he did not seek to conduct trial proceedings." (Ibid.) It held that the federal "Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." (Id. at p. 178.)
Finally in Godinez, the Supreme Court stressed that "[w]hile psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements. [Citation.]" (Godinez, supra, 509 U.S. at p. 402.)
We are cognizant, however, that due process does not require an NGI defendant to be mentally competent to be subject to proceedings to extend an involuntary commitment. In Hudec, the California Supreme Court explained that "[i]f a section 1026.5 extension hearing could not proceed until any doubts about the [NGI defendant's] competence were resolved, the issue of an NGI [defendant's] continuing mental illness, central to the hearing under section 1026.5, subdivision (b)(1), would tend to be subsumed within nonstatutory proceedings on mental competence, and the hearing called for by section 1026.5 could be indefinitely delayed. [Citations.]" (Hudec, supra, 60 Cal.4th at pp. 828-829.)
We do not decide that an NGI defendant must meet the Dusky standard of competence to stand trial to retain the jury trial waiver decision. An NGI defendant's present ability to consult with defense counsel with a reasonable degree of rational understanding is not to the point. But informed by the case law on competency to stand trial, we conclude that the question of whether an NGI defendant has the capacity to knowingly and voluntarily waive a jury trial asks whether the NGI defendant has the present mental ability to rationally and factually understand the basic jury trial waiver decision. A sophisticated technical or legal understanding is not required.
4. Analysis
On review of a trial court's determination that an NGI defendant lacked the capacity to make a knowing and voluntary waiver of his right to jury trial, we determine whether there was sufficient evidence to support the trial court's finding that there was "substantial evidence—that is, evidence sufficient to raise a reasonable doubt—that the defendant lack[ed] the capacity to make a knowing and voluntary waiver." (Tran, supra, 61 Cal.4th at p. 1163; see id. at p. 1167.)
Contrary to Thomas's claim on appeal, the record does not clearly demonstrate that the trial court applied the wrong legal standard in relying on Dr. Maqsood's testimony. Dr. Maqsood's trial testimony indicated that his current opinion regarding Thomas's capacity to make the jury trial waiver decision was guided by the standard for evaluating an involuntarily committed patient's competency to make a medical treatment decision. (See ante, fn. 2.) That standard essentially focuses on the patient's present ability to rationally and factually understand the decision at hand, i.e., the same considerations in deciding whether an NGI defendant has the capacity to make the jury trial waiver decision.
In this case, the evidence was sufficient to raise a reasonable doubt about Thomas's capacity to make a knowing and voluntary jury waiver. It showed that Thomas suffered from continuing and chronic schizophrenia, chronic psychosis, very disorganized thinking, and multiple delusional beliefs, and that Thomas denied committing his underlying crime or having a mental illness. In addition, there was evidence that Thomas was unclear about what a jury would be deciding, had an irrational faith in a jury's ability to get him out of the hospital, and was fixated on having a jury trial.
Substantial evidence supports the trial court's finding that there was "substantial evidence—that is, evidence sufficient to raise a reasonable doubt—that the defendant lack[ed] the capacity to make a knowing and voluntary waiver." (Tran, supra, 61 Cal.4th at p. 1163.) In light of that proper finding, control of the jury waiver decision belonged to defense counsel. (Id. at p. 1167.) Thomas was not entitled to "override [his] counsel's decision." (Ibid.) C. Marsden Motions
On appeal, it is argued that Thomas and his appointed counsel had an irreconcilable conflict because she ignored his "clearly stated desire to have a trial within the time parameters laid out in the law." He asserts that his counsel "set a trial date well after the expiration of his commitment" and "declined to advocate on his behalf" at the hearing on his capacity to waive jury trial. He alleges that his counsel instead "worked with the prosecutor to deny him [his jury trial] right." Thomas claims that consequently he was "forced to go to trial with an attorney [that] he, for good reason, did not trust."
1. Governing Law
We assume that Thomas had a right to the equivalent of a Marsden motion for substitution of counsel. (See Hudec, supra, 60 Cal.4th at pp. 822 [legislative history of section 1026.5 indicates that NGI defendant intended to have right to counsel in extension proceedings]; cf. People v. Hill (2013) 219 Cal.App.4th 646, 652 ["defendant in an SVPA [Sexually Violent Predator Act] proceeding has a due process right to a Marsden hearing"]; Conservatorship of David L. (2008) 164 Cal.App.4th 701, 712-713 [prospective conservatee under LPS (Lanterman-Petris-Short) Act has a due process right to a Marden hearing].); cf. also People v. Otto (2001) 26 Cal.4th 200, 209 [an SVP defendant "entitled to due process protections" "[b]ecause civil commitment involves a significant deprivation of liberty"].)
"The legal principles governing a Marsden motion are well settled. ' " ' " 'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance.' " ' " ' [Citations.]" (People v. Johnson (2018) 6 Cal.5th 541, 572-573 (Johnson).) If a defendant requests substitute counsel "at any time during criminal proceedings," the trial court must, under Marsden, "give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney. [Citation.]" (People v. Sanchez (2011) 53 Cal.4th 80, 90, fn. omitted.)
" 'Once a defendant is afforded an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge. The court does not abuse its discretion in denying a Marsden motion " 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' " [Citations.] Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when "the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." [Citations.]' [Citation.]" (People v. Myles (2012) 53 Cal.4th 1181, 1207 (Myles).)
A defendant's asserted distrust of his counsel is not enough to warrant substitution of counsel. " 'If a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.' [Citations.]" (Myles, supra, 53 Cal.4th at p. 1207.)
"[A] defendant may not force the substitution of counsel by manufacturing a conflict or a breakdown in the relationship through his own conduct. [Citations.]" (Johnson, supra, 6 Cal.5th at p. 574.) " 'A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel . . . .' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 913.)
A defendant may not "argue on appeal that the trial court ought to have discharged counsel for reasons that the defendant failed to make known to the trial court at the time of the [Marsden] proceedings. [Citation.]" (Johnson, supra, 6 Cal.5th at p. 574.)
2. The Two Marsden Motions
On February 2, 2017, the trial court held a closed hearing with respect to Thomas's grievances against his counsel. Thomas, who was present, indicated that he was unhappy with counsel because he had been held past the deadline for his release. He was concerned that he would be denied a jury trial but was unsure of how his counsel would handle the issue.
Thomas's counsel said that she had informed the district attorney and the court that Thomas was invoking his right to have a jury trial. It was her understanding that Thomas had a jury trial date at the end of February. Thomas's counsel also explained that his jury trial had been delayed because neither the district attorney nor she had received updated records from the Department of State Hospitals, which were necessary for her to competently represent him.
The trial court then confirmed with Thomas that he desired a jury trial. When the court asked Thomas whether he wished to be transported and personally appear at trial or whether he wished to attend the trial by TV from the hospital, Thomas indicated that he wished to be transported. The court said that it would issue a transportation order. The court found that there was no breakdown in Thomas's relationship with his counsel and denied the Marden motion.
On March 14, 2017, the court held a second Marsden motion following the capacity hearing and the waiver of a jury trial by Thomas's counsel. Thomas told the court that he did not understand why his counsel "determined what she said about a jury trial" and that he "wanted a jury trial" because he believed that he understood his crime. When the court asked Thomas what he believed that his counsel had done that she should not have done or what she should have done that she did not do, Thomas gave a nonresponsive answer. He said, "Oh, well, I didn't know we were going to be here discussing this in the first place, you know. I mean, either it's peanut butter we're dealing with and we're going to go to a jury trial, or it's jelly and I don't know what we're talking about. [¶] I didn't expect this to happen anyway. . . [I]t's my right to have a jury no matter how—within the State of California." Thomas also complained, "[W]e're way out of time. This was supposed to be done in January." Defendant continued to ramble in a non-responsive way.
After the court stated that it did not see any grounds for granting a motion, Thomas suggested that there were "better lawyers." Thomas said, "I don't mean that she's a bad lawyer," and "[S]he isn't a bad lawyer or anything." He said, "I'm saying there are better, more high-profile lawyers to have," and "I'm just saying I was just trying for a better . . . , a more high-profile lawyer."
Although Thomas is arguing on appeal that his counsel worked against his interests because he did not wish to waive time and wanted a jury trial, Thomas did not demonstrate that his counsel's decision to waive time or to waive a jury trial fell below the norms of professional conduct (see Strickland, supra, 466 U.S. at p. 688) or resulted in an "irreconcilable conflict" likely to result in ineffective representation. Thomas has not established that the trial court abused its discretion by determining after each Marsden hearing that Thomas was not entitled to substitution of counsel. D. Order Extending Thomas's Commitment
1. Evidence at the Trial on the Petition to Extend Thomas's Commitment
At trial on March 14, 2017, Dr. Maqsood testified that he was Thomas's treating psychiatrist and the "team lead" on Thomas's unit in Napa State Hospital. He ran a "long-term stabilization team," which included a social worker, a psychologist, and a "rehab therapist." There were also nursing staff and technicians. Dr. Maqsood had been participating in Thomas's treatment for almost two years at the time of trial. He testified that Thomas was suffering from chronic schizophrenia and pedophilic disorder. In Dr. Maqsood's opinion, Thomas still exhibited symptoms of acute psychosis, and he was "actively psychotic" and chronically "disorganized" in his thinking. Thomas did not follow his unit's rules and regulations.
As Thomas's treating psychiatrist, it was Dr. Maqsood's responsibility to make medication decisions for Thomas. At the time of the hearing, Thomas was taking Olanzapine, which kept his aggression under control but did not eliminate all of his symptoms.
Thomas had been offered medications for "treatment-resistant schizophrenia" since he had failed on two or more other medications and his symptoms had not improved. However, Thomas was not cooperating with any change to his current medication and was not complying with his treatment.
On many occasions, Dr. Maqsood had tried to discuss the risks and benefits of Clozaril, a medication for patients, like Thomas, who had "failed other medications." Dr. Maqsood attempted to explain Thomas's need for a change of medication, but Thomas was unable to engage in a discussion for any length of time. He became frustrated and left the room or used profanity. Thomas could not start on Clozaril because he refused to do the necessary blood work and did not comply with lab orders. Dr. Maqsood had started Thomas on another medication, Depakote, to stabilize Thomas's mood several months before the hearing. But the medication had to be discontinued because Thomas had refused to comply with the required blood work, and Thomas had to be put back on Olanzapine. Thomas had developed side effects, such as a stiff neck, from the older anti-psychotic medications, and as a result there were not many medication options for him.
Dr. Maqsood had reviewed the hospital's documents pertaining to Thomas. Dr. Maqsood briefly described his underlying criminal offense, which was a sexual offense against a 10-year-old girl at a school, committed with a knife. Thomas had been delusional and disorganized at the time of the offense. He had believed that a dentist, while filling a tooth, had implanted a device sending him messages. He still suffered from delusional beliefs, including that "he was a security guard at the school and he was selling bicycles at the school."
Thomas refused to accept responsibility for his offense, and he was refusing to participate in sexual offender treatment groups. Thomas did not participate in any groups, including group therapy, and he did not believe that he needed to participate because he had not done anything wrong.
Dr. Maqsood opined that Thomas posed a substantial danger of physical harm to others and was not safe to be released in the community. Dr. Maqsood's opinion was based on Thomas's lack of insight into his mental illness, his failure to comply with treatment, his repeated threats and cursing directed at staff members, and his "really low frustration tolerance." Although Thomas had not been physically aggressive while in Dr. Maqsood's care at Napa State Hospital, Dr. Maqsood believed that Thomas's lack of insight could lead to violence.
In Dr. Maqsood's view, Thomas's schizophrenia, together with his pedophilic disorder, would cause Thomas to have serious difficulty in controlling his dangerous behavior outside the hospital. Thomas had a history of being attracted to underage girls and did not accept any responsibility for his behaviors. In the psychiatrist's opinion, Thomas posed a significant risk to the community.
Further, Thomas had not developed a wellness recovery action plan (WRAP) that described what he would do if released from the state hospital. Patients were expected to have a WRAP that "identified their triggers [and] warning signs, their symptoms, [and] their coping skills" and contained their plans for "hand[ing] stress in the community, . . . see[ing] a psychiatrist out in the community, where . . . they [are] going to stay." Dr. Maqsood testified that Thomas had no understanding of those issues and did not want to work on a WRAP.
Dr. Maqsood personally interacted with Thomas at least once or twice a month. In addition, when Dr. Maqsood was on Thomas's unit for team meetings or to talk to other patients, he had the opportunity to observe Thomas in the hallway. Within the 30 days before the hearing, Dr. Maqsood had observed Thomas exhibiting symptoms of schizophrenia, such as responding to internal stimuli or talking to himself, despite being on medication. He testified that Thomas "still continues to respond to internal stimuli."
The whole treatment team discussed all patients, including Thomas, twice each day. Dr. Maqsood confirmed that there had been a recent incident in which Thomas had threatened a staff member, a "shift lead." Thomas had refused to meet with the team concerning the incident.
Dr. Maqsood had spoken directly to the staff member who had been threatened by Thomas. The incident had occurred the week before the hearing. Thomas had threatened to knock down the staff member, who had moved Thomas's television to clean and search Thomas's room. As a result, Thomas was on "30-day unit restriction" under which he was only allowed to move around his unit and go to the dining room, but he could not go on the hospital's grounds.
It was "standard behavior" for Thomas to become agitated and frustrated and then leave the room or use profane language. His threats toward and swearing at staff members was an ongoing issue.
In June of 2016, a search of Thomas's room led to the discovery that Thomas was making "Pruno," a liquor made of sugar and fruit. This conduct was a rule violation, and a report was generated. As far as Dr. Maqsood could recall, Thomas had engaged in his standard behavior when the team attempted to meet with him regarding this incident. Thomas had not accepted any responsibility for the Pruno incident and had denied making the liquor.
Dr. Maqsood had reviewed a March 22, 2016 HCR-20 assessment of Thomas performed by Dr. Karen Phillips, who was a member of Thomas's treatment team at that time. Dr. Phillips had found that Thomas posed a high risk if released to the community. Dr. Maqsood had not been trained to use a HCR-20 assessment, which was a tool used by psychologists, but he had received "extensive training in risk assessment for violence" as part of his residency. Dr. Maqsood agreed with Dr. Phillips's conclusion regarding the risk posed by Thomas.
Dr. Maqsood had his own independent opinion of the risk presented by Thomas based on his independent training and his independent knowledge of "Thomas's history, his current symptoms, and his current presentation." That opinion was that Thomas presented "a risk . . . based on [his] chronic history of mental illness, noncompliance with the overall treatment, not accepting responsibility, and having no insight into his instant offense."
The defense presented no evidence.
After offering the parties an opportunity to argue, the court granted the petition to extend Thomas's commitment.
2. The Trial Court's Observations of Defendant
Thomas now argues that the court's personal observations of him on March 14, 2017 were facts not in evidence and that "it was improper for the court to treat them as evidence" in ruling on the petition. Thomas further contends that by considering his "demeanor, the trial court infringed on [his] right not to testify," his right to confrontation and cross-examination, and his right to counsel. The People assert that Thomas's claims were forfeited by the failure to object below. a. Background
At the close the March 14, 2017 proceedings, the trial court explained on the record that it had observed Thomas on the screen throughout the proceedings. It said that Thomas had been "mostly staring at his handcuffed hands in his lap, not particularly looking at the screen." Thomas had not appeared to have "been following the proceedings," and he had appeared "to be responding to internal stimuli, by humming and mumbling words to no one in particular, which [the court indicated] sort of reinforce[d] [its] decision about [Thomas's] inability to understand what a jury does." The court suggested that any reviewing court could note "the disparity between [its] questions and [Thomas's] nonresponsive answers" in the sealed transcript of the Marsden hearing.
The trial court's written order extending Thomas's commitment, filed March 16, 2017, indicated that the court had relied in part on its "observation of [Thomas] during the hearing" in making its findings. b. Forfeiture
We agree that any objection to the court's consideration of Thomas's demeanor was forfeited by not raising it below. (See Sheena K., supra, 40 Cal.4th at pp. 880-881.) We will address, however, Thomas's claim that his counsel's failure to object to the court's consideration of and reliance on his demeanor constituted ineffective assistance of counsel. c. Alleged Ineffective Assistance of Counsel
Thomas has not established that his counsel acted deficiently in failing to object to the trial court's consideration of Thomas's demeanor, which included its observation that he appeared "to be responding to internal stimuli, by humming and mumbling words to no one in particular." Thomas's treating psychiatrist had described him as continuing to exhibit symptoms of schizophrenia, such as responding to internal stimuli or talking to himself, despite being on medication and as suffering from chronically disorganized thinking. Thomas's nontestimonial conduct observed by the court was consistent with that description.
As Thomas points out, "In criminal trials of guilt, prosecutorial references to a nontestifying defendant's demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant's right not to testify. (3) Consideration of the defendant's behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character. [Citations.]" (People v. Heishman (1988) 45 Cal.3d 147, 197, abrogated on another point in People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
In People v. Garcia (1984) 160 Cal.App.3d 82 (Garcia), it was explained: "Ordinarily, a defendant's nontestimonial conduct in the courtroom does not fall within the definition of 'relevant evidence' as that which 'tends logically, naturally, [or] by reasonable inference to prove or disprove a material issue' at trial. (People v. Jones (1954) 42 Cal.2d 219, 222; People v. Stein (1979) 94 Cal.App.3d 235, 240.) Neither can it be properly considered by the jury as evidence of [a] defendant's demeanor since demeanor evidence is [relevant only] as it bears on the credibility of a witness. (Evid.Code, § 780.)" (Id. at p. 91, fn. omitted.)
In Garcia, the appellate court limited its holding, however, "to those instances where defendant's nontestimonial behavior at counsel table is not objectively relevant to any disputed issue at trial and is merely offered to show defendant's character or a trait of his character." (Garcia, supra, 160 Cal.App.3d at p. 91, fn. 7.) The court warned that "[i]t should not be inferred from this analysis that we somehow disapprove of the routine practice of a jury viewing the defendant's physical appearance to see if it comports with a physical description given by a witness or to determine if the physical appearance of a defendant supports a factual finding that must be made by the trier of fact. (See, e.g., People v. Montalvo (1971) 4 Cal.3d 328, 335 [view of defendant by the trier of fact in an appropriate case may be sufficient to support a finding that defendant is an adult].)" (Ibid.)
In People v. Smith (2007) 40 Cal.4th 483, the defendant argued that the jurors' discussion "about defendant's demeanor during trial was misconduct because it demonstrate[d] that the jury improperly considered information that was not part of the evidence received at trial and relied on this evidence to determine that defendant was sane at the time of the offenses." (Id. at p. 524.) The California Supreme Court commented that the defendant had "cite[d] no authority for the principle that it is misconduct for a jury to discuss a defendant's demeanor during a sanity trial." (Ibid.) The court held that it was "not misconduct for the jury to discuss his demeanor during deliberations" (id. at p. 525) where a central question during a trial's "sanity phase was whether defendant suffered from organic mood disorder, bipolar disorder, antisocial personality disorder, or other cognitive or mental disorders" (ibid.) and "a defense expert expressly analyzed defendant's demeanor during trial." (ibid.)
Here, Thomas's counsel could have reasonably decided not to object to the trial court's consideration of Thomas's demeanor. "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Counsel does not render ineffective assistance by not making an objection that he or she reasonably determines would be meritless or futile. (See People v. Lucero (2000) 23 Cal.4th 692, 732; People v. Price (1991) 1 Cal.4th 324, 386-387.) Thomas's counsel may have reasonably decided that an objection would not be meritorious or useful given Dr. Maqsood's testimony as to Thomas's physical symptoms of schizophrenia. Thomas has not established that his counsel acted deficiently by not objecting to the court's consideration of his demeanor. (See Strickland, supra, 466 U.S. at pp. 687-689.)
Insofar as Thomas may be arguing that the trial court could not consider his demeanor in deciding whether he had the capacity to knowingly and voluntarily waive a jury trial, we reject the contention. "Evidence of [a criminal defendant's] incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 847, italics added.) In Blackburn, the Supreme Court found that its holding regarding the MDO defendant's capacity to waive a jury trial was "consistent with the result, if not the reasoning, of People v. Otis (1999) 70 Cal.App.4th 1174 (Otis), which upheld the trial court's acceptance of counsel's jury trial waiver over the objection of an MDO defendant." (Blackburn, supra, 61 Cal.4th at p. 1131.) In Blackburn, the Supreme Court stated: "The defendant in that case showed signs of cognitive impairment at the commitment hearing: 'Otis . . . told the court that invisible police had been sexually assaulting him and were sexually assaulting him as he spoke to the court. The court stated for the record that Otis was not being assaulted in court.' [Citation.] The trial court's direct observation of Otis provided ample basis to doubt that he was capable of making a knowing and voluntary waiver decision. [Citation.]" (Ibid., italics added.)
In addition, Thomas's counsel had no valid basis to object to the trial court's consideration of Thomas's demeanor on the ground that the trial court had infringed on Thomas's right not to be a witness against himself. In Hudec, the California Supreme Court held: "By its terms, section 1026.5(b)(7) provides that NGI committees facing a commitment extension hearing enjoy the trial rights constitutionally guaranteed to criminal defendants, which include the right to refuse to testify in the People's case-in-chief." (Hudec, supra, 60 Cal.4th at p. 832.) Thomas's right not to testify was not violated by the court's observation of his nontestimonial behavior consistent with Dr. Maqsood's testimony regarding the manifestations of Thomas's schizophrenia.
In any case, Thomas's ineffective assistance of counsel claim fails because he has not demonstrated that there is a reasonable probability that the result of the proceeding would have been different if his counsel had objected to the trial court's consideration of his behavior at the proceedings. (See Strickland, supra, 466 U.S. at pp. 694, 700.) Dr. Maqsood's uncontroverted testimony amply supported the trial court's conclusion that Thomas "by reason of a mental disease, defect, or disorder represent[ed] a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1).) Accordingly, we reject this claim of ineffective assistance of counsel.
3. The Trial Court's Consideration of Inadmissible Hearsay
a. Contentions
Thomas argues that his right to due process was violated because the trial court partly based its decision on inadmissible hearsay. Thomas points to Dr. Maqsood's testimony regarding his criminal offense, Dr. Phillips's HCR-20 risk assessment of him, his recent threat against a staff member, and the 2016 Pruno incident.
Thomas's argument relies in part upon People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which held, among other things, that "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) Although Thomas recognizes that he had no Sixth Amendment right to confront witnesses, he contends that he had a due process right to confront Dr. Phillips and the other adverse hearsay evidence.
Sanchez, a criminal case, defined "case-specific facts" as those facts "relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.)
The People maintain that Thomas forfeited the foregoing contentions by failing to object below. We agree. (See Evid. Code, § 353; People v. Dykes (2009) 46 Cal.4th 731, 756 ["the general rule [is] that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal"]; People v. Partida (2005) 37 Cal.4th 428, 431, 435, 438-439 [but a defendant may argue that an error in admitting evidence over objection had the additional legal consequence of violating the defendant's due process rights]; People v. Burgener (2003) 29 Cal.4th 833, 869 [by failing to object below, the defendant waived his constitutional claims that the admission of hearsay violated his federal rights to due process and confrontation]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 314, fn. 3 [Sixth Amendment "right to confrontation may, of course, be waived, including by failure to object to the offending evidence"].) b. Alleged Ineffective Assistance of Counsel
Thomas also asserts that his counsel should have objected to the "case-specific hearsay" and that there is a reasonable probability that, but for his counsel's failure to object, the result would have been more favorable to him. In considering an ineffective assistance of counsel 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." (Strickland, supra, 466 U.S. at p. 697.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Ibid.)
It is unclear whether the People would have presented at least some of the evidence now challenged through other witnesses if an objection had been raised below. "The rule requiring an objection on the ground asserted on appeal serves important purposes—including permitting the court to make a reasoned ruling and the proponent of the evidence to cure any defect." (People v. Anderson (2018) 5 Cal.5th 372, 403.)
In any event, Dr. Maqsood testified from first-hand experience as Thomas's treating psychiatrist that Thomas was suffering from chronic schizophrenia and pedophilic disorder, that Thomas still exhibited symptoms of acute psychosis and was "actively psychotic," that Thomas was chronically "disorganized" in his thinking, that Thomas continued to exhibit symptoms of schizophrenia such as responding to internal stimuli, that Thomas refused to comply with his treatment plan or necessary blood work, that Thomas did not accept responsibility for his offense and had no insight, that Thomas refused to participate in treatment groups, that Thomas quickly became frustrated, and that he had not developed a WRAP. It was Dr. Maqsood's independent, personal opinion that Thomas posed a substantial danger of physical harm to others and was not safe to be released in the community. The defense presented no contrary evidence.
Thomas has not demonstrated that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694; Harrington v. Richter (2011) 562 U.S. 86, 111-112.) E. Cumulative Effect of Errors
Defendant contends the cumulative effect of the errors amounted to a deprivation of due process. We have not found multiple instances of error resulting in cumulative prejudice that in the aggregate is "greater than the sum of the prejudice of each error standing alone. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 845.) This is not a situation where "a series of trial errors," which are independently harmless, have risen "by accretion to the level of reversible and prejudicial error. [Citations.]" (Id. at pp. 844-845.) Thomas forfeited some of his claims of error, and others we have rejected on their merits.
DISPOSITION
The order of commitment filed on March 16, 2017 is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
PREMO, J.