Filed 9/12/13 P. v. Shelton CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                   A137532
v.
                                                                     (Sonoma County
SCOTT PATRICK SHELTON,                                               Super. Ct. No. SCR-450976)
         Defendant and Appellant.


         Appellant Scott Patrick Shelton was previously found not guilty by reason of
insanity. He appeals an order imposing a two-year extension of his commitment to Napa
State Hospital (NSH) pursuant to Penal Code section 1026.5, subdivision (b).1 Shelton
contends that his defense counsel’s waiver of jury trial on the extension petition was
invalid. We affirm.
                         I.        FACTUAL AND PROCEDURAL BACKGROUND
         On December 23, 2004, Shelton entered a plea of not guilty by reason of insanity
(NGI) to two counts of assault on a peace officer. Pursuant to section 1026, he was
committed to NSH for a maximum term of six years four months with credit for time
served.
         On August 26, 2010, the People petitioned to extend Shelton’s commitment
pursuant to section 1026.5, subdivision (b). Following defense counsel’s waiver of a jury



         1   Unless otherwise noted, all further statutory references are to the Penal Code.


                                                             1
trial on the petition, over Shelton’s objection, the court found the People’s extension
petition had been proved beyond a reasonable doubt, and ordered Shelton’s commitment
extended until February 7, 2013. We affirmed that extension order in an unpublished
opinion. (People v. Shelton (Oct. 19, 2011, A130923) [nonpub. opn.].)
       On July 18, 2012, the People again petitioned to extend Shelton’s commitment
pursuant to section 1026.5, subdivision (b). Defense counsel again waived, over
Shelton’s objection, a jury trial. At the outset of Shelton’s extension proceedings, the
following colloquy occurred:
       “THE COURT: . . . He’s willing to waive jury and have this as a court trial.
       “[DEFENSE COUNSEL]: I’m willing to waive jury on his behalf.
       “THE COURT: On his behalf.
       “THE DEFENDANT: Sir.
       “THE COURT: Is that correct?
       “[DEFENSE COUNSEL]: Yes.
       “THE COURT: And the People willing to waive jury?
       “[PROSECUTOR]: Yes.
       “THE DEFENDANT: No, sir. I would like to be able to have a jury. Last time I
was in court, I didn’t have a jury. I appreciate if I can disbar—not disbar, but dismiss my
lawyer, if she’s recommending that I don’t have a . . . jury trial, because I like to have
one.
       “THE COURT: Okay. Have you met and discussed the various aspects of this
case with him?
       “[DEFENSE COUNSEL]: I’ve actually represented Mr. Shelton on a number of
occasions, including attempted jury trial about four years back.
       “Based upon his report from [NSH], I had the right to and power to waive jury
over his objection.
       “THE COURT: You feel it’s in his best interests to do that?
       “[DEFENSE COUNSEL]: Well, I think, yes, everybody’s best interests.”
       A court trial was held.


                                              2
       A June 11, 2012 extension report by NSH psychologist Benjamin Rose opined that
Shelton should be considered for an extension of his NSH commitment because “he has a
severe mental illness [and] continues to represent a substantial danger to others.” The
report stated that Shelton had been diagnosed with schizoaffective disorder, bipolar type;
amphetamine dependence; and antisocial personality disorder. Shelton’s schizoaffective
disorder is manifested by a history of hallucinations and mood cycling. His
methamphetamine dependence is manifested by an extensive history of
methamphetamine abuse since adolescence. His antisocial personality disorder is
manifested by “a pervasive pattern of disregard for and violation of the rights of others”
and a history of arson.
       In concluding that Shelton has severe mental illness and continues to represent a
substantial danger to others, the extension report noted that he “has a history of violence
and is refusing many aspects of treatment. He has had many episodes of verbal
aggression, and at times physical aggression, in the past year.” Specifically, the
following aggressive acts, among others, were noted: (1) On January 4, 2011, Shelton
spit on his peers; (2) On July 14, 2011, Shelton verbally threatened staff members when
he believed they were putting hair in his food. When NSH police intervened, Shelton
swung his fist at a staff member; (3) On December 26, 2011, Shelton refused his
medication after cursing, threatening, and pacing the hallway; (4) On January 30, 2012,
Shelton punched another individual in the head; (5) On May 15, 2012, Shelton told a
nurse, “I’m going to kill you mother fucker,” as he raised a clenched fist; (6) On May 26,
2012, Shelton received several stitches after fighting with a peer; (7) On July 24, 2012,
Shelton refused medication and threw punches at staff.
       A conditional release program hospital liaison report observed that Shelton was
not attending group treatment and had also been found to be making a homemade wine,
called “pruno.” It was also noted that, on August 2, 2012, “ ‘[Shelton] became loud,
demanding for coffee, started posturing, then grabbed staff eyeglasses and tore [them]
apart with his hands . . . he began urinating on the walls stating “fuck you all.” ’ ” The



                                              3
report concluded: “Shelton is seemingly unamenable to treatment at NSH, flagrantly
violates rules, and demonstrates a consistent disregard for others . . . .”
       Shelton testified that the allegations of aggression were untrue. He explained:
“I’m an animated person, they misperceive the fact if I’m angry or upset or defiant. I
have attention deficit and impulsive type where it seems like I’m manic all the time and
people perceive that where the fact that I’ve been threatening or violent, it’s not true.
People that know me know that I have a pretty mild demeanor.” He denied possessing or
drinking pruno.
       The court found that Shelton continued to represent a substantial danger of
physical harm to others, as a result of his mental disorder, and ordered Shelton’s
commitment extended until February 7, 2015. This timely appeal followed.
                                     II.     DISCUSSION
       “Under section 1026.5, subdivision (b)(1), ‘[a] person may be committed beyond
the term prescribed by subdivision (a) only under the procedure set forth in this
subdivision and only if the person has been committed under Section 1026 for a felony
and by reason of a mental disease, defect, or disorder represents a substantial danger of
physical harm to others.’ At no less than 90 days before the term of commitment ends,
the prosecuting attorney may file a petition for extended commitment in the superior
court which issued the original commitment. (§ 1026.5, subd. (b)(2).) The person named
in the petition has a right to be represented by an attorney and the right to a jury trial.
(§ 1026.5, subd. (b)(3).) If, after trial, the court or jury finds the patient ‘by reason of a
mental disease, defect, or disorder represents a substantial danger of physical harm to
others,’ the patient will be recommitted for an additional period of two years from the
date of termination of the previous commitment. (§ 1026.5, subd. (b)(8).)” (People v.
Zapisek (2007) 147 Cal.App.4th 1151, 1159.)
       Shelton maintains that the extension order must be reversed because his defense
counsel did not have the unconditional right to waive jury trial over Shelton’s objection,
absent a finding that he was not competent to make the decision himself. Shelton relies
on a now depublished opinion, People v. Tran (2013) 216 Cal.App.4th 102, review


                                               4
granted August 14, 2013, S211329, which he contends makes clear “that defense counsel
has some right to waive jury trial, but not over the objection of her client unless it can be
shown on the record that he lacks the capacity to make that decision, and there was no
attempt in this case to make such a showing.” Citable precedent suggests otherwise.
          The federal and state Constitutions guarantee the right to a jury trial in criminal
cases, and that right can be waived only by the defendant personally. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 16.) However, “[t]he right to trial by jury at a civil
extension hearing is statutory, not constitutional. (See § 1026.5, subd. (b)(3), (4)).”
(People v. Givan (2007) 156 Cal.App.4th 405, 410.) Section 1026.5, subdivision (b)(3)
provides, in part, “When the petition is filed, the court shall advise the person named in
the petition of the right to be represented by an attorney and of the right to a jury trial.”
Subdivision (b)(4) provides, in part, “[t]he trial shall be by jury unless waived by both the
person and the prosecuting attorney.” Subdivision (b)(7) provides that the person “shall
be entitled to the rights guaranteed under the federal and State Constitutions for criminal
proceedings. All proceedings shall be in accordance with applicable constitutional
guarantees.”
          In People v. Powell (2004) 114 Cal.App.4th 1153, 1157 (Powell), the defendant
demanded a jury for his section 1026.5 trial extending his commitment to a state hospital.
The trial court denied the request on the ground that he had already waived a jury. The
defendant disagreed, asserting that his attorney had waived a jury. On appeal, the
defendant contended that the right to jury trial, like that in a criminal case, must be
personally waived. (Powell, at p. 1157.) The Court of Appeal disagreed, noting that a
section 1026.5 extension trial is a civil proceeding directed at treatment, not punishment.
(Ibid.)
          The Powell court cited People v. Superior Court (Williams) (1991)
233 Cal.App.3d 477, 488: “ ‘[A]lthough many constitutional protections relating to
criminal proceedings are available in extension proceedings, the application of all such
protections is not mandated by section 1026.5. The statutory language merely codifies
the application of constitutional protections to extension hearings mandated by judicial


                                                 5
decision.’ ” (Powell, supra, 114 Cal.App.4th at pp. 1157–1158.) The Powell court
concluded that, like the protections of the privilege against self-incrimination, the ex post
facto clause, and the double jeopardy clause, the personal waiver of a jury trial was not
applicable at a recommitment trial. (Powell, at p. 1158.) The Powell court reasoned:
“An insane person who is ‘a substantial danger of physical harm to others’ (§ 1026.5,
subd. (b)(1)) should not be able to veto the informed tactical decision of counsel.”
(Powell, at p. 1158.) Accordingly, “counsel may waive jury trial over objection of his or
her client in a ‘[NGI]’ commitment extension trial.” (Id. at p. 1156.)
       We find the Powell court’s reasoning persuasive. And, Powell’s holding is not an
anomaly. In a variety of situations involving involuntary commitment, the California
courts have held that a jury trial may be waived by counsel, over the defendant’s
objection. (People v. Barrett (2012) 54 Cal.4th 1081, 1105 (Barrett) [civil commitment
of “mentally retarded” person who is a “danger” to herself or others]; People v.
Masterson (1994) 8 Cal.4th 965, 972, 974 (Masterson) [competency proceeding]; People
v. Montoya (2001) 86 Cal.App.4th 825, 829 [mentally disordered offender proceeding];
People v. Otis (1999) 70 Cal.App.4th 1174, 1177 [same].)
       In Barrett, supra, 54 Cal.4th 1081, our Supreme Court first noted that, unlike most
other involuntary commitment schemes, there is no statute authorizing a jury to
determine whether someone is mentally retarded and dangerous for purposes of a Welfare
and Institutions Code, section 6500 commitment. (Barrett, at p. 1096.) However, the
parties both “invoke[d] a long and unbroken line of California appellate court cases
holding or assuming—largely on the basis of federal and state equal protection principles
affecting fundamental interests—that persons alleged to be mentally retarded and
dangerous cannot be denied a jury altogether where jury trials are granted by statute to
persons alleged to be mentally impaired and dangerous under comparable commitment
laws.” (Id. at p. 1097, italics omitted.) In concluding that counsel had exclusive control
over the decision to waive a jury trial, the Barrett court relied, in part, on its earlier
decision in Masterson, supra, 8 Cal.4th 965. (Barrett, supra, 54 Cal.4th at pp. 1101,
1105–1106.) The court noted that “Masterson . . . made the following key point: ‘The


                                                6
sole purpose of a competency proceeding is to determine the defendant’s present mental
competence, i.e., whether the defendant is able to understand the nature of the criminal
proceedings and to assist counsel in a rational manner. [Citations.] Because of this, the
defendant necessarily plays a lesser personal role in the proceeding than in a trial of guilt.
How can a person whose competence is in doubt make basic decisions regarding the
conduct of a proceeding to determine that very question?’ (Masterson, supra, 8 Cal.4th
[at p.] 971.)” (Barrett, at p. 1101.) Likewise, the Barrett court noted that “the significant
cognitive and intellectual deficits that [mental retardation] entails, which appear early in
life and never recede, affect the ability to ‘make basic decisions’ regarding the conduct of
the [Welfare and Institutions Code] section 6500 proceeding. [Citation.] Such an
individual thus plays a limited ‘personal role’ in the case, and must rely on counsel to
decide all tactical and procedural matters, such as whether to exercise the jury trial right.
[Citation.]” (Id. at pp. 1103–1104.) Ultimately, the Barrett court concluded:
“[S]omeone . . . who is alleged to be mentally retarded and dangerous under [Welfare and
Institutions Code] section 6500, is not in a position to personally assert or waive the right
to jury trial, to sufficiently comprehend the jury trial advisement, or to override the views
of counsel on the subject. Sole control over such tactical and procedural decisions rests
with counsel, whether or not the client has been consulted or objects.” (Id. at p. 1105.)
       Shelton does not persuade us that it is unreasonable to make a similar assumption
in the NGI context. It defies common sense to allow a person previously deemed insane
and “a substantial danger of physical harm to others” (§ 1026.5, subd. (b)(1)) to veto the
informed tactical decision of counsel.
       Even, assuming arguendo, that the court erred in allowing Shelton’s counsel to
waive jury trial over Shelton’s objection, any error was harmless. In People v. Epps
(2001) 25 Cal.4th 19, 28–29, the Supreme Court explained that where the right to jury
trial is created by statute, and not the Constitution, the erroneous denial of a jury trial is
subject to the People v. Watson (1956) 46 Cal.2d 818 test of harmless error. Given the
record before us, which contains ample evidence in support of the extension order, it is



                                               7
not reasonably probable that a different result would have been reached had the extension
proceeding been tried before a jury.
                                   III.   DISPOSITION
      The order extending Shelton’s commitment to NSH is affirmed.



                                                _________________________
                                                Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Needham, J.




                                            8
