Filed 3/5/14 P. v. Diego CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B247140
                                                                            (Super. Ct. No. F482312)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

WILLIAM DIEGO,

     Defendant and Appellant.




                   William Diego appeals the order determining him to be a mentally
disordered offender (MDO) and committing him to the Department of Mental Health
(now State Department of State Hospitals) for treatment. (Pen. Code,1 § 2962 et seq.)
Appellant contends the court violated his statutory right to a jury trial by allowing his
attorney to waive the right over appellant's objection. We affirm.
                                FACTS AND PROCEDURAL HISTORY
                   In January 2010, appellant was convicted of assault with a deadly weapon
(§ 245, subd. (a)(1)) and was sentenced to three years in state prison. On November 7,
2012, the Board of Parole Hearings (BPH) determined that appellant met the criteria for
MDO treatment and sustained the requirement of treatment as a condition of his parole.


         1 All further undesignated statutory references are to the Penal Code.
Appellant petitioned for a hearing pursuant to section 2966, subdivision (b), and counsel
was appointed to represent him. Over appellant's objection, his attorney waived his right
to a jury trial.
                   Dr. Brandi Mathews, a forensic psychologist, testified at appellant's
commitment trial. After interviewing appellant, reviewing his medical records from
Atascadero State Hospital (ASH), and consulting with his treating psychologist, Dr.
Mathews opined that appellant met the criteria for MDO treatment. Appellant suffers
from schizophrenia and has a history of delusions, paranoia, auditory hallucinations, and
disorganized thoughts. He has frequently been observed talking and laughing to himself,
and believes that people are out to get him.
                   Appellant's mental disorder predates his commitment offense of assault
with a deadly weapon, and was a factor in his commission of that offense. The facts of
the offense indicate that appellant stabbed and threatened to kill the manager of the hotel
where appellant was staying after the manager asked him to leave the premises. At the
time of the BPH hearing appellant was still suffering from his mental illness and was not
in remission. When Dr. Mathews interviewed appellant less than a week prior to the
hearing, he exhibited an increase in his paranoia and became delusional. Appellant's
records reflected that he had received over 90 days of treatment in the year preceding the
hearing.
                   Dr. Mathews also testified that appellant had not voluntarily followed his
treatment plan and refused to take his medication as prescribed. The doctor opined that
appellant presented a substantial risk of physical harm to others by reason of his mental
disorder, into which he has limited insight.
                   Appellant testified in his own behalf. He said he had been following his
treatment plan and attending group therapy, and would continue treatment if released
from custody.
                   At the conclusion of the hearing, the court found that the MDO criteria had
been met. Accordingly, the court denied appellant's petition and ordered him committed
for further treatment.

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                                       DISCUSSION
              Appellant's sole contention on appeal is that the court denied his right to a
jury trial under subdivision (a) of section 2972 by allowing his attorney to waive the right
over appellant's objection. He acknowledges the numerous cases rejecting this
contention. (E.g., People v. Montoya (2001) 86 Cal.App.4th 825, 829-830 (Montoya);
People v. Fisher (2006) 136 Cal.App.4th 76, 81; People v. Otis (1999) 70 Cal.App.4th
1174, 1177 (Otis).) He finds hope, however, in the fact that our Supreme Court has
agreed to decide the issue. (People v. Blackburn (2013) 215 Cal.App.4th 809, review
granted Aug. 14, 2013, No. S211078.) Relying on Blackburn, appellant asserts that
"waiver is improper unless the record demonstrates circumstances that cast doubt on the
MDO's mental capacity to determine what is in his or her best interest." He goes on to
claim that the record in this case is insufficient to make such a determination, nor does it
establish that appellant was personally advised of his right to a jury trial.
              Unless and until the Supreme Court rules otherwise, we will continue to
adhere to the view that an MDO's statutory right to a jury may be waived over his
objection by counsel. The statute's statement that "[t]he trial shall be by jury unless
waived by both the person and the district attorney" (§ 2972, subd. (a)) is reasonably
interpreted to mean that "defense counsel may waive jury trial on behalf of his client."
(Montoya, supra, 86 Cal.App.4th at p. 830.) Moreover, as we reasoned in Otis: "Section
2966 concerns persons who have been found by the Board of Prison Terms [now BPH] to
be mentally disordered. The Legislature must have contemplated that many persons,
such as Otis, might not be sufficiently competent to determine their own best interests.
There is no reason to believe the Legislature intended to leave the decision on whether
trial should be before the court or a jury in the hands of such a person." (Otis, supra, 70
Cal.App.4th at p. 1177.)
              To the extent that a jury waiver in this context is only proper when the
record casts doubt on the defendant's ability to make the decision for himself, the record
here is sufficient in that regard. Appellant claims he gave "coherent and intelligent"
testimony demonstrating that he was competent to decide whether to waive a jury trial.

                                               3
His testimony, however, was very brief and fails to counter the evidence indicating that
he was not competent to make such a decision. Dr. Mathews' uncontroverted testimony
showed that appellant was delusional and paranoid and could only keep his thoughts
organized for a brief period of time. In light of this evidence, there was "no reason to
believe that [appellant] was capable of making a reasoned decision about the relative
benefits of a civil jury trial compared to a civil bench trial." (Montoya, supra, 86
Cal.App.4th at p. 831, fn. omitted.)
               Even if the record reflected otherwise, the error in failing to obtain
appellant's personal waiver would not compel reversal. The denial of a statutory right to
a jury trial is harmless unless it is reasonably probable the defendant would have
achieved a more favorable result had the matter been tried by a jury rather than the court.
(People v. Epps (2001) 25 Cal.4th 19, 29; People v. Watson (1956) 46 Cal.2d 818, 836.)
Counsel made a legitimate tactical decision to proceed with a court trial. In light of Dr.
Mathews' uncontroverted testimony, it is not reasonably probable that a jury would have
returned a more favorable verdict. (See People v. Cosgrove (2002) 100 Cal.App.4th
1266, 1276.)
               The judgment is affirmed.
               NOT TO BE PUBLISHED.


                                            PERREN, J.


We concur:


               GILBERT, P. J.


               YEGAN, J.




                                               4
                               Barry T. LaBarbera, Judge
                       Superior Court County of San Luis Obispo
                         ______________________________


             Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn
McGahey Webb, Supervising Deputy Attorney General, Taylor Nguyen, Deputy
Attorney General, for Plaintiff and Respondent.




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