Filed 4/12/16 P. v. Fekadu CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067686

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD109580)

BERIHU FEKADU,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.

Lasater, Judge. Conditionally reversed and remanded with directions.



         Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Daniel Hilton,

Deputy Attorneys General, for Plaintiff and Respondent.
       Berihu1 Fekadu appeals from a decision granting a petition to extend his

commitment as a person found not guilty by reason of insanity (NGI) for an additional

two-year period. (Pen. Code,2 § 1026.5.) Fekadu contends: (1) the minute order from

his trial erroneously references a one-year commitment and mentally disordered offender

(MDO) status and should be corrected to reflect his two-year commitment extension and

clarify his status as an NGI defendant; and (2) the trial court erred when it allowed

Fekadu's trial counsel to waive his right to a jury trial without sufficient findings to

establish Fekadu's personal voluntary waiver or his lack of capacity to do so. The People

correctly concede that the minute order must be amended and that the matter must be

remanded to permit the trial court to make the required findings, or to grant a new trial.

       We agree that the minutes contain errors that must be corrected. We also agree

that the trial court erred in allowing Fekadu's right to a jury trial to be waived without the

required affirmative showing. We therefore reverse the commitment order and remand to

the trial court to make the necessary findings.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 1995, a jury found Fekadu NGI as to two counts of a forcible lewd act with a

child (§ 288, subd. (b)) and three counts of felony assault (§ 245, subd. (a)(1)). The court

found Fekadu had not recovered his sanity at that time and he was committed for

treatment with a maximum term of confinement (including only periods of actual

1     Mr. Fekadu's first name is predominately spelled "Berhu" in the trial court record
and case caption, but is spelled "Berihu" on the notice of appeal.

2      All further statutory references are to the Penal Code unless otherwise specified.
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confinement) of six years and 10 months. In 1998 and 1999, Fekadu was on outpatient

status for a short period of time, but otherwise has remained confined since the original

trial. Fekadu's commitment had been extended five times prior to the present case.

       On May 6, 2014, the San Diego County District Attorney petitioned for a sixth

time to extend Fekadu's commitment. Before the petition was heard, the parties were

before the court on several occasions.3 On September 5, 2014, Fekadu's attorney stated

that he "discussed Mr. Fekadu's trial rights with him" and "he's asking to set a jury trial

date." On January 8, 2015, the court documented Fekadu's behavior for the record as

follows:

           "[T]he last three days, Mr. Fekadu was refusing to come out of his
           cell and so he could not be sent out, and then today he did agree to
           come out of his cell, he was brought into the courtroom, made a
           scene in the courtroom, kept speaking very loudly and was very
           disruptive in the courtroom, so he is not currently present."

       On March 3, 2015, counsel for both parties informed the court that there would be

a jury waiver. Fekadu was present at the hearing. Later that day, the court held a bench

trial on the commitment petition. During the trial, Fekadu interrupted on two separate

occasions with "emergency question[s]." First, Fekadu complained that he had a "very,

very, very prejudice attorney" and that he didn't think he could "have a fair trial with

him," as he "had a little fight, and he brings three interpreters and under one name."

Fekadu rejected the interpreter because he believed she and the attorneys were "very,

very, very corrupt," "[t]oo danger to me and to others," "unfair," "HIV positive," "fraud"


3     Although Judge Melinda J. Lasater presided over the bench trial, pretrial hearings
were heard by several different judges.
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and "fraudest" and he did not want them. Second, Fekadu interrupted to ask that one of

the witnesses repeat her statements "under oath," and when instructed by the court to be

quiet, stated: "[d]angerous, corruptive, unbelievable, unbelievable, unbelievable." In

addition, when the court allowed Fekadu to speak at the end of the hearing, he said he

had been a victim of abuse in Ethiopia since he was 10 and had then become blind,

athletic, a "doctor that can heal," "a savior," "[a] prayer warrior and defensive warrior"

and "a preacher." Fekadu further stated that he is an immigrant and did not come to

commit crime, but "for peaceful better life." Fedaku closed by accusing the doctor of

lying, saying: "it's all lies" and "unbelievable."

       Upon conclusion of the bench trial, the court granted the petition and extended

Fekadu's period of commitment. The court considered the elements of CALCRIM No.

3453 (Extension of Commitment), which encompasses the standard of section 1026.5,

subdivision (b)(1). The court made findings beyond a reasonable doubt that "Mr. Fekadu

does suffer from a mental disease and disorder and specifically as the doctor indicated

schizophrenia paranoid type and that as a result of the mental disease defective disorder,

that he poses a substantial danger of physical harm to others and has a difficulty

controlling his danger [sic] and behavior." However, the court minutes dated

March 3, 2015, incorrectly refers to the petition as "Petition re: PC2970" (the section

setting the standard for extending MDO involuntary commitment) and further states that

the commitment is extended "for a period of one year" (corresponding to the MDO

commitment extension period under § 2970). The two-year time period and statutory



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references to section 1026.5 are referenced in the order for extension of commitment filed

on March 13, 2015.

                                       DISCUSSION

I. Court Trial Minutes

       Fekadu contends that the court minutes of March 3, 2015, incorrectly use the

language of MDO commitments and erroneously purport to extend Fekadu's commitment

for only one year. Fekadu is concerned about potential adverse consequences from these

errors if they are not corrected.

       The appellate court may correct clerical errors on its own motion or upon

application of the parties. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.) It

appears clear from the record that there were clerical errors in the March 3, 2015 minutes

that are inconsistent with the court's determination at trial and its final order. The minute

order refers to a one-year extension of Fekadu's commitment and describes the

proceeding as "COURT TRIAL ON PETITION RE: PC2970," reflecting the standard

governing MDO extension proceedings. We find that the time period in the minutes

should be modified to reflect the correct two-year term of a section 1026.5 commitment

extension. We further find that the erroneous reference to section 2970, the standard for

MDO extensions, should be corrected.

II. Waiver of Jury Trial

       Fekadu further maintains the trial court erred by allowing Fekadu's trial counsel to

waive his right to a jury trial. We agree.



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A. Background

         On March 3, 2015, Fekadu's trial counsel waived Fekadu's right to a jury trial.

Although Fekadu was present at the hearing, the court did not inquire about Fekadu's

position on the matter, and Fekadu's trial counsel made no representation that Fekadu had

consented to the waiver. Fekadu's counsel had previously represented (on Sept. 5, 2014)

that he "discussed Mr. Fekadu's trial rights with him" and "he's asking to set a jury trial

date."

B. Law and Analysis

         Section 1026.5, subdivision (b)(1)-(11) establishes the procedure for extending

commitment time for NGI defendants. Subdivision (b)(3) requires the court to "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 for the right to jury trial "unless waived

by both the person and the prosecuting attorney." Subdivision (b)(7) establishes that the

person "shall be entitled to the rights guaranteed under the federal and State Constitutions

for criminal proceedings."

         In August 2015, the Supreme Court examined the standard for a jury waiver under

section 1026.5 and held that pursuant to subdivisions (b)(3) and (b)(4): "The trial court

must advise the NGI 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 the defendant lacks the capacity to make a

knowing and voluntary waiver, in which case defense counsel controls the waiver

decision." People v. Tran (2015) 61 Cal.4th 1160, 1163 (Tran).) In Tran, "[t]he trial

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court did not advise Tran of his right to a jury trial, nor did it obtain a personal waiver

from Tran or find substantial evidence that Tran lacked the capacity to make a knowing

and voluntary waiver." (Ibid.) The Supreme Court found that the trial court erred in

these respects. (Ibid.) Tran summarized that "the trial court must elicit the waiver

decision from the defendant in a court proceeding unless it finds substantial evidence that

the defendant lacks the capacity to make a knowing and voluntary waiver, in which case

counsel controls the waiver decision," and disapproved People v. Powell (2004) 114

Cal.App.4th 1153, 1158, and People v. Givan (2007) 156 Cal.App.4th 405, 410-411, "to

the extent they are inconsistent with this rule." (Tran, at p. 1169.)

       The Supreme Court further held that a trial court's acceptance of an invalid jury

trial waiver requires an automatic reversal, except under the following circumstances:

           "A trial court's acceptance of counsel's waiver without an explicit
           finding of substantial evidence that the NGI defendant lacked the
           capacity to make a knowing and voluntary waiver may be deemed
           harmless if the record affirmatively shows that there was substantial
           evidence that the defendant lacked that capacity at the time of
           defense counsel's waiver. Similarly, a trial court's acceptance of a
           defendant's personal waiver without an express advisement of the
           statutory right to a jury trial may be deemed harmless if the record
           affirmatively shows, based on the totality of the circumstances, that
           the defendant's waiver was knowing and voluntary." (Tran, supra,
           61 Cal.4th at p. 1170.)

       However, because the trial court and parties in Tran "may have reasonably relied

on that prior law in proceeding with a bench trial without making a record of Tran's

personal waiver or his inability to make a knowing and voluntary waiver at the time of

counsel's waiver," the Supreme Court instructed the Court of Appeal "to remand to the

trial court so that the district attorney may submit evidence, if any, that Tran personally

                                               7
made a knowing and voluntary waiver or that he lacked the capacity to make a knowing

and voluntary waiver at the time of counsel's waiver." (Tran, supra, 61 Cal.4th at

p. 1170.) "If the trial court finds by a preponderance of the evidence that Tran made a

knowing and voluntary waiver, or if it finds substantial evidence that Tran lacked the

capacity to make a knowing and voluntary waiver at the time of counsel's waiver, then

the court shall reinstate the extension order." (Ibid.) The Supreme Court clarified that:

          "This approach applies to all cases presently on direct appeal where
          the record does not reveal whether an NGI defendant personally
          waived his or her right to a jury trial or whether there was substantial
          evidence that the defendant lacked the capacity to make a knowing
          and voluntary waiver at the time of counsel's waiver." (Ibid.)

       Here, as in Tran, supra, 61 Cal.4th 1160, there is insufficient evidence on the

record to establish that Fekadu was instructed of his right to a jury trial and personally

made a knowing and voluntary waiver. Nor did the trial court determine that Fekadu

lacked the capacity to make such a waiver, although there is considerable evidence of his

bizarre behavior on and around the waiver date. Under these circumstances, the matter

must be remanded to the trial court to make the affirmative showing required by Tran.

                                      DISPOSITION

       The order of the trial court extending Fekadu's commitment is conditionally

reversed. The matter is remanded to the trial court to determine whether Fekadu made a

knowing and voluntary waiver of his right to a jury trial or whether, at the time of the

waiver, there was substantial evidence that Fekadu lacked the capacity to make a

knowing and voluntary waiver. If the court determines that Fekadu made a knowing and

voluntary waiver, or finds substantial evidence that he lacked the capacity to make such a

                                              8
waiver, the order extending Fekadu's commitment shall be reinstated. If such evidence

cannot be established, the court is instructed to provide a new hearing and disposition that

comply with Tran, supra, 61 Cal.4th 1160.

       In addition, the March 3, 2015 long form minutes are hereby corrected (on p. 1 of

2) to read "COURT TRIAL ON PETITION RE: PC1026.5" instead of "COURT TRIAL

ON PETITION RE: PC2970" and "for a period of two years" instead of "for a period of

one year."




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



O'ROURKE, J.


IRION, J.




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