Filed 3/1/13 P. v. Luna CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037527
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 171019)

         v.

BELLO LEE LUNA,

         Defendant and Appellant.



         Defendant Bello Lee Luna challenges the trial court‟s order extending his
commitment as a mentally disordered offender (MDO). He contends that the trial court
prejudicially erred in failing to advise him of his right to a jury trial and obtain his
personal waiver of that right. We affirm.


                                                   I. Background
         A petition to extend Luna‟s commitment was filed in June 2011. Luna had
suffered prior convictions for criminal threats and false imprisonment, and he originally
had been committed as an MDO in 1995. His commitment had been repeatedly extended
since then. Luna was not present at the first hearing on the petition on June 15, 2011, but
he was represented by counsel. The same was true at three subsequent hearings in June
and July.
       Luna also was not present at a hearing on August 19, 2011. The following
colloquy occurred at the August hearing. “THE COURT: . . . And it‟s my
understanding the respondent is asking for a trial. He‟s waiving jury; correct? [¶] MR.
SHARKEY [Luna‟s counsel]: That‟s right, Your Honor.” The prosecutor also waived
jury trial. The trial was set for October 24.
       Luna was present at the October 24, 2011 trial. At the outset, the court stated that
“this is an agreed-upon court trial for extension of his MDO status, I believe.” The
prosecutor confirmed as much, and Luna‟s trial counsel affirmed that he was ready to
proceed. Luna said nothing.
       The sole witness at the trial was Dr. Mendel Feldsher. Feldsher, a psychiatrist,
testified as an expert on diagnosis and treatment of mental disorders and on risk
assessment. Luna‟s trial counsel did not challenge Feldsher‟s expertise.
       Feldsher testified that he had interviewed Luna, reviewed his records, and
consulted with Luna‟s current treating psychiatrist. In his expert opinion, Luna posed “a
substantial risk of physical harm to others by reason of his severe mental disorder.”
Feldsher found the “most consistent” diagnosis to be that Luna was a paranoid
schizophrenic. Although Luna had also been previously diagnosed with schizoaffective
disorder bipolar type, Feldsher found no evidence in Luna‟s records of “a discrete manic
episode or depressive episode” even though there was evidence that Luna had
experienced “some significant depressive symptoms.” While schizoaffective disorder
might also be an appropriate diagnosis, Feldsher simply did not find enough evidence in
the records to support that diagnosis at this time.
       Feldsher explained the basis for his opinion that Luna posed a substantial risk of
physical harm to others. Luna experienced “paranoid delusional beliefs.” Luna told
Feldsher that Luna was “being held hostage” by hospital staff to “make money” for the
state. Luna also told Feldsher “that I should be scared for my wife and for myself if I



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were to be involved in -- as an agent against him is how he described it.” Luna had
previously made threats to three other psychiatrists at Napa State Hospital.
       Luna‟s underlying convictions were based on a threat to the life of a social worker
and the commission of an attempted rape at knifepoint. He also had a significant criminal
history as a juvenile when he had been found carrying a concealed weapon on four
occasions. He had also been convicted of stabbing a man in the abdomen in a bar.
Feldsher found the recurring theme of stabbing people with knives particularly troubling.
This was especially true in light of the fact that Luna had been found in possession of two
shanks in November 2010 at Napa State Hospital, and he had stated at the time that he
wanted “to kill somebody.” In January 2011, Luna threatened to stab his psychiatrist,
and he was again found in possession of two shanks. In August 2011, Luna was observed
“in a fighting stance with another peer and he told staff „I‟m going to get him.‟ ”
       Luna was subject to an involuntary medication order, and he told Feldsher that he
believed he did not need psychiatric medications “whatsoever.” He also did not believe
that he suffered from a mental disorder. He had “no insight whatsoever.” Luna refused
to participate in any treatment, refused “lab draws,” and sometimes refused to shower.
Luna was not willing to consider “cooperat[ing] with CONREP.”
       Luna‟s trial counsel‟s brief cross-examination attempted to show that Feldsher had
only a limited knowledge of Luna based solely on a single interview of Luna, reports, and
consultation with Luna‟s current treating psychiatrist, who had been treating Luna for
only a short time.
       The entire trial lasted 23 minutes. Both attorneys submitted the matter without
argument. The court found the petition true and ordered Luna‟s commitment extended
for one year. Luna timely filed a notice of appeal.




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                                          II. Analysis
         Luna‟s sole appellate contention is that the trial court prejudicially erred in failing
to advise him of his statutory right to a jury trial and obtain a personal waiver of that
right.
         “The court shall conduct a hearing on the petition under Section 2970 for
continued treatment. The court shall advise the person of his or her right to be
represented by an attorney and of the right to a jury trial. . . . [¶] . . . The trial shall be
by jury unless waived by both the person and the district attorney.” (Pen. Code, § 2972,
subd. (a).) “If the court or jury finds that the patient has a severe mental disorder, that the
patient‟s severe mental disorder is not in remission or cannot be kept in remission without
treatment, and that by reason of his or her severe mental disorder, the patient represents a
substantial danger of physical harm to others, the court shall order the patient
recommitted . . . .” (Pen. Code, § 2972, subd. (c).)
         The record before us does not establish that the trial court complied with its
statutory obligation to advise Luna of his right to a jury trial or that it obtained his
personal waiver of that right. Nevertheless, Luna cannot establish that reversal of the
court‟s order is required.
         Even if we assume that Luna personally would not have waived his right to a jury
trial if he had been advised by the court of that right, a doubtful proposition, this right is
purely statutory. (People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276 (Cosgrove).)
Consequently, the applicable standard of harmless error review is “whether it is
reasonably probable that a result more favorable to defendant would have been reached
absent the error.” (Ibid.) Where the evidence supporting the order is overwhelming, this
standard cannot be satisfied. (Ibid.) Luna acknowledges that this is the appropriate
standard, and he makes no attempt to distinguish Cosgrove, where the deprivation of a
jury trial was found harmless. (Ibid.)



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       Here, the evidence presented at trial was so overwhelming that it is inconceivable
that a jury would have reached a result more favorable to Luna. Feldsher‟s testimony
was unrebutted, and it established beyond any doubt that Luna suffers from a severe
mental disorder that is not in remission. Luna is a paranoid schizophrenic who may also
suffer from schizoaffective disorder. He denies that he has a mental illness, denies that
he requires medication, and takes medication only due to a court order. Even with
medication, he suffers from delusions and continues to threaten violence against his
peers, staff, and particularly psychiatrists. He indisputably poses a substantial danger of
physical harm to others. Although he is confined in a state hospital, he has repeatedly
obtained deadly weapons and made threats to use them to kill others. Based on this
evidence, no jury could have concluded other than that Luna is severely mentally ill and
poses a very high danger of physical harm to others. It follows that the absence of a jury
trial advisement and personal waiver did not prejudice Luna.
       Luna contends that the failure to advise and obtain a personal waiver deprived him
of due process. He relies on In re Gary W. (1971) 5 Cal.3d 296 (Gary W.). Gary W.
involved an extension of a ward‟s youth authority commitment due to his dangerousness.
The ward contended that he was entitled under due process and equal protection to a jury
trial on the commitment petition. (Gary W., at p. 303.) The crux of his contention was
that there was no adequate basis for distinguishing dangerous wards from mentally
disordered sex offenders (MDSOs), narcotics addicts, and “dangerous persons” with
respect to the jury trial right. (Gary W., at pp. 303-304.) The California Supreme Court
agreed and found that there was no compelling justification for distinguishing between
these various prospective civil committees with respect to the fundamental jury trial right.
Since the others were granted a statutory right to a jury trial, wards too were entitled to
such a right as a matter of equal protection. (Gary W., at pp. 305-307.) Gary W. has no
application here. Luna‟s right to equal protection was not abridged because he, like other
prospective civil committees, had a statutory right to a jury trial. Gary W. said nothing

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about the appropriate error standard to apply in such cases. Luna‟s reliance on People v.
Burnick (1975) 14 Cal.3d 306 (Burnick) is also misplaced. Burnick was an MDSO case.
The court held that due process required proof beyond a reasonable doubt. (Burnick, at
pp. 314, 318.) No issue was raised regarding the right to a jury trial, as that right was
statutorily provided. Nor can Luna establish an equal protection violation, as he, like
other prospective civil committees, has a statutory right to a jury trial. No distinction was
drawn against him.
       Luna was not prejudiced by the trial court‟s failure to advise him of his right to a
jury trial or to obtain a personal waiver of that right.


                                       III. Disposition
       The order is affirmed.




                                            _______________________________
                                            Mihara, J.



WE CONCUR:



_____________________________
Premo, Acting P. J.



_____________________________
Márquez, J.




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