People v. Ford

Filed 10/23/20
                 CERTIFIED FOR PUBLICATION




       IN THE COURT OF APPEAL OF THE STATE OF
                     CALIFORNIA

                 SECOND APPELLATE DISTRICT

                       DIVISION FOUR

 THE PEOPLE,                           B300043
                                       (Los Angeles County
         Plaintiff and Respondent,     Super. Ct. No. ZM028642-01)

         v.

 ARMANDO FORD,

         Defendant and Appellant.

     APPEAL from an order of the Superior Court of Los
Angeles County, James Bianco, Judge. Conditionally
reversed and remanded with directions.
     Jean Matulis, under appointment by the Court of
Appeal, for Defendant and Appellant.
     Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Jaime L. Fuster and
Joseph P. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.

     ___________________________________________________


                     INTRODUCTION
      The People petitioned to extend appellant Armando
Ford’s involuntary commitment under Penal Code section
1026.5, and the trial court set the matter for a pre-trial
hearing.1 Despite the trial court’s order that appellant be
transported to the hearing, the state hospital failed to do so.
In appellant’s absence, his appointed counsel presented a
psychiatrist’s single-paragraph letter opining that appellant
lacked the capacity to decide whether to waive his right to a
jury trial. Based on this letter, the trial court found
appellant incompetent to decide whether to waive his right
to a jury. Appellant’s counsel then waived his right to a jury
on his behalf. Following a bench trial, the court found the
People’s petition true and extended appellant’s commitment.
      On appeal, appellant contends the trial court erred by,
inter alia, deciding in his absence that he was incompetent
to decide whether to waive this right, and by accepting his
counsel’s waiver. The Attorney General does not dispute
that the court erred but argues any error was harmless
beyond a reasonable doubt. We conclude appellant’s absence
at the proceeding was prejudicial. We therefore

1    Undesignated statutory references are to the Penal Code.


                               2
conditionally reverse the trial court’s extension order and
remand for further proceedings.

                       BACKGROUND
      A. Appellant’s Initial Commitment and the People’s
        Extension Petition
      In 2013, appellant pleaded not guilty by reason of
insanity (NGI) to attempted kidnapping, was found legally
insane at the time of his offense, and was committed to a
state hospital under section 1026.2 In February 2019, a few
months before his maximum commitment date, the People
petitioned to extend appellant’s commitment by two years
under section 1026.5, alleging he represented a substantial
danger of physical harm to others due to his mental illness.
      The trial court held an arraignment hearing in
appellant’s absence and appointed two psychiatrists to
examine him: Dr. Kory Knapke for the defense and
Dr. Gordon Plotkin for the People. The court then set the
matter for a pre-trial hearing on April 25, 2019, and ordered
the state hospital to transport appellant to the hearing.
Appellant’s counsel informed the court that appellant would
likely demand a jury trial.



2      As to the circumstances of his offense, appellant claimed he
was experiencing hallucinations that led him to believe a car was
on fire, prompting him to attempt to “‘rescue’” a child from inside
the vehicle.


                                 3
      B. The April 25 Pre-Trial Hearing, Dr. Knapke’s Letter,
         and Counsel’s Waiver of Appellant’s Right to a Jury
        Trial
      Despite the court’s order, the state hospital failed to
transport appellant to the April 25 hearing, and the hearing
proceeded in his absence. At the hearing, appellant’s
counsel presented a single-paragraph letter from
Dr. Knapke, opining that appellant lacked the capacity to
decide whether to waive his right to a jury trial. This letter
stated: “As part of my evaluation that I conducted on
[appellant] on April 19, 2019, at Patton State Hospital
(PSH), I also addressed the patient’s capacity to waive jury.
[Appellant] appeared to be very confused during this
interview about the nature of the upcoming proceedings.
Throughout this clinical interview, he argued about evidence
against him in his committing offense as if he believed that
his upcoming court proceedings in the mental health court
are related to litigation involving the committing offense.
He insisted that his attorney is not following up with the
evidence to exonerate him from the crime itself. It became
clear during this interview that [appellant] is confused and
disorganized in his thinking and does not understand basic
courtroom proceedings, especially in regards to the nature of
his upcoming court proceedings. He believes that a jury
should listen to new evidence involved in the underlying
crime because he believes they will find him not guilty. I do
not believe [appellant] has the capacity to waive jury and he
remains very psychotic and heavily medicated.”


                              4
      Based on Dr. Knapke’s letter, the trial court found
appellant incompetent to decide whether to waive his jury
rights. Appellant’s counsel then waived appellant’s right to
a jury on his behalf, and the People followed suit.
Appellant’s counsel requested that the court set trial for a
date the state hospital could transport appellant because
“[h]e likes to appear in person.” The court agreed, set the
matter for a bench trial on May 30, 2019, and ordered the
state hospital to transport appellant to court for the trial.

     C. The Trial to Extend Appellant’s Commitment
         1. The Prosecution Case
      Dr. Plotkin was the People’s sole witness. He
interviewed and evaluated appellant on April 15, 2019,
about six weeks before the trial. Dr. Plotkin testified that
appellant had been diagnosed with schizophrenia, and
displayed symptoms consistent with that diagnosis at the
time of their interview, including disorganized thoughts,
paranoia, and delusions. According to Dr. Plotkin,
appellant’s thinking was so disorganized that he had
difficulty staying on track and answering questions without
going off-topic. Dr. Plotkin stated that appellant had very
poor insight into his mental illness, and testified that when
he asked appellant if he believed he needed medication,
appellant suggested he did not.
      Dr. Plotkin referenced several disciplinary and
behavioral issues appellant had during his commitment,
including incidents in which he had allegedly assaulted or


                              5
attempted to assault others. Based on his evaluation,
Dr. Plotkin opined that appellant was a substantial danger
of physical harm to others and could not control his impulses
due to his mental disorder.

         2. The Defense Case
      Appellant testified on his own behalf. In response to
his counsel’s questioning, he acknowledged he had a mental
disorder; he was initially diagnosed with schizophrenia but
his diagnosis had been changed to “bipolar schizoaffective.”
According to appellant, he had heard voices in the past, but
the medication he was taking was helping, and he no longer
heard voices. He reported that with the medication, he was
able to be coherent with his peers, talk to his doctor, and
attend all his group meetings.
      Appellant described his plan for release from the
hospital: his cousin in Sonoma County would help him go to
the social security office, obtain Medi-Cal, and get his
medications. His backup plan involved leaving California
and going back to his family in Georgia, where he would seek
the assistance of Georgia’s Department of Behavioral
Health.
      When asked about the behavioral incidents during his
commitment, appellant offered various explanations, and
asserted that he would never hit anyone and was not
dangerous because he had “a soft heart.” Appellant ended
his testimony by addressing the court, stating that he knew
he had a mental illness, but that he also knew it could be


                              6
treated with medication and therapy, and that he would rely
on his family’s help.

      D. The Trial Court’s Ruling
      Following the hearing, the trial court found the
petition true and extended appellant’s commitment by two
years. In so doing, the court told appellant he was doing
better compared to previous times he had been before the
court, and remarked, “In fact, I suspect you’re doing better
than Dr. Plotkin -- he’s nodding his head -- even better than
when he saw you about six weeks ago.” Nevertheless, the
court concluded appellant was not ready to be released and
ordered his continued commitment. Appellant timely
appealed, challenging the trial court’s finding that he was
incompetent to decide whether he wanted a jury trial, and
its acceptance of his counsel’s jury waiver, all in his absence.

                          DISCUSSION
      A. Applicable Law
      A criminal defendant found not guilty by reason of
insanity may be committed to a state medical facility for a
period equal to the maximum sentence the court could have
been imposed for the underlying offense. (§ 1026.5, subd.
(a)(1).) Before this term expires, the prosecuting attorney
may file a petition with the superior court seeking to extend
the defendant’s commitment by two years. (§ 1026.5, subd.
(b)(2), (8).) After the prosecutor files an extension petition,
the court must “advise the person named in the petition of


                               7
the right to be represented by an attorney and of the right to
a jury trial.” (Id., subd. (b)(3).) Trial on the petition “shall
be by jury unless waived by both the person and the
prosecuting attorney.” (Id., subd. (b)(4).) The NGI
defendant “shall be entitled to the rights guaranteed under
the federal and State Constitutions for criminal proceedings”
and “[a]ll proceedings shall be in accordance with applicable
constitutional guarantees.” (Id., subd. (b)(7).)
      In People v. Tran (2015) 

61 Cal. 4th 1160

, 1166 (Tran),
our Supreme Court held that under section 1026.5, the trial
court must advise an NGI defendant personally -- in court
and on the record -- of the right to a jury trial on an
extension petition. Similarly, the court held that only the
defendant himself or herself may waive the right to a jury,
unless there is substantial evidence that the defendant lacks
the capacity to make that decision. 

(Tran, supra

, at 1167.)
Only if substantial evidence suggests the defendant is
incompetent to decide whether to waive a jury will the
defendant’s counsel control that decision. (Ibid.) “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.” (Ibid.)
      A knowing jury waiver “requires an appreciation of the
nature of the jury trial right and the consequences of
forgoing this right.” (People v. Sivongxxay (2017) 

3 Cal. 5th 151

, 171 (Sivongxxay), italics omitted.) Competence to make
the decision, however, requires only the “capacity” to


                               8
comprehend it 

(Tran, supra

, 61 Cal.4th at 1167); it does not
require a preexisting understanding of the meaning of a jury
trial and the consequences of any waiver. Indeed, section
1026.5’s requirement of a personal advisement of the right
recognizes that the NGI defendant may not be sufficiently
aware of it, and it is intended to allow even an uninitiated
defendant to make an informed choice. (See People v.
Blackburn (2015) 

61 Cal. 4th 1113

, 1125 (Blackburn) [“The
purpose of an advisement is to inform the defendant of a
particular right so that he or she can make an informed
choice about whether to waive that right”].)

      B. Analysis
      Appellant contends the trial court violated his
constitutional due process right to be present at the April 25
hearing at which it found him incompetent to decide if he
wanted a jury trial.3 The Attorney General does not dispute
that appellant was denied his constitutional right to be
present, but argues that any error was harmless beyond a
reasonable doubt under Chapman v. California (1967) 

386 U.S. 18

(Chapman) because appellant’s presence at the
hearing would not have changed the outcome. Under


3     Courts have recognized that persons subject to civil
commitment have a due process right to be present at critical
stages of the proceedings. (See, e.g., People v. Wilkinson (2010)

185 Cal. App. 4th 543

, 547-550 [“mentally retarded” individual];
People v. Fisher (2009) 

172 Cal. App. 4th 1006

, 1013 [mentally
disordered offender].)


                                 9
Chapman, it is the People’s burden to show that any federal
constitutional error was harmless beyond a reasonable
doubt. (People v. Jackson (2014) 

58 Cal. 4th 724

, 748.)
       We are unpersuaded by the Attorney General’s
contention that appellant’s presence would have made no
difference in the court’s assessment of appellant’s capacity to
waive his right to a jury trial. In enacting section 1026.5,
the Legislature envisioned a pre-trial hearing at which the
NGI defendant is not only present but is also addressed
directly by the court concerning his or her right to a jury
trial. (See § 1026.5, subd. (b)(3); 

Tran, supra

, 61 Cal.4th at
1166.) This procedure provides an opportunity for
meaningful interaction between the defendant and the court
on the topic of the defendant’s right to a jury. The court’s
direct observation of the NGI defendant may be the most
relevant evidence of the defendant’s competence to make an
informed decision. (Cf. Conservatorship of Pamela J. (2005)

133 Cal. App. 4th 807

, 824 [court will be hard-pressed to
decide whether patient is competent to refuse electrocon-
vulsive therapy unless patient is present at hearing];

Blackburn, supra

, 61 Cal.4th at 1131 [discussing case where
civil-commitment defendant told trial court that invisible
police were sexually assaulting him as he spoke, and noting
that court’s direct observation provided ample basis to doubt
defendant’s capacity to make knowing waiver decision]; In re
R.V. (2015) 

61 Cal. 4th 181

, 199 [in competency hearing, trier
of fact may observe person’s behavior and interactions with
counsel].) That the court found appellant incompetent in his


                              10
absence may have deprived him of the opportunity to
present his strongest evidence of his own competence.
      Appellant’s subsequent testimony at trial suggests that
had he been present at the April 25 hearing, he might well
have been able to dispel any doubt about his capacity to
understand the jury-waiver decision. His testimony was
coherent and responsive to the questions he was asked. He
stressed he was not dangerous, a necessary element for the
extension of his commitment, and emphasized favorable
facts, such as his regular attendance at group meetings.
And at the end of his testimony, he addressed the court with
a closing statement consistent with the theme of his
testimony, in a final attempt to persuade the court that he
should be released. The court itself was apparently
impressed by appellant’s testimony, noting his improvement
from prior times he had been before the court. Appellant’s
testimony showed, at the very least, that he understood who
the decisionmaker was, what was being decided, and what
considerations were pertinent -- factors that would have
been highly relevant to an informed jury-waiver decision.
(See 

Sivongxxay, supra

, 3 Cal.5th at 171.) Appellant’s
presentation at trial could have persuaded a court that he
was fully competent to decide on his own whether he wanted
a jury trial.
      In attempting to show that appellant’s absence from
the April 25 hearing was not prejudicial, the Attorney
General makes two arguments based on Tran. Neither is
persuasive. First, the Attorney General contends our


                             11
Supreme Court in Tran did not contemplate contested
competency hearings. This contention is misguided. In
Tran, the trial court accepted a jury waiver by an NGI
defendant’s counsel without making an on-the-record
incompetence finding. 

(Tran, supra

, 61 Cal.4th at 1164.)
Our Supreme Court held that absent such a finding, an NGI
defendant must personally waive the right to a jury. (Id. at
1167.) However, it noted that the trial court and the parties,
relying on prior law, may have failed to make a record of the
defendant’s personal waiver or his incompetence to make it.
(Id. at 1170.) Accordingly, the Tran court remanded for the
People to submit evidence, if any, that the defendant had
made a personal waiver or that he lacked the capacity to
make it “at the time of defense counsel’s waiver.” (Ibid.)
This procedure was meant to fill a potential gap in the
record, rather than to model competency hearings in future
cases.
       Second, the Attorney General claims that under Tran,
“any error” in accepting counsel’s waiver of a jury may be
deemed harmless “‘if the record affirmatively shows that
there was substantial evidence that the defendant lacked
that capacity [to make a knowing and voluntary waiver] at
the time of defense counsel’s waiver.’” The Attorney General
again misreads Tran. There, our Supreme Court stated that
“[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


                             12
affirmatively shows that there was substantial evidence that
the defendant lacked that capacity at the time of defense
counsel’s waiver.” 

(Tran, supra

, 61 Cal.4th at 1170, italics
added.) Tran does not stand for the proposition that
violating the defendant’s right to be present and thus
slanting the record against him or her will be harmless
merely because the same incomplete record raises doubts
about the defendant’s competence.
       The Attorney General emphasizes that the trial court
credited Dr. Knapke’s opinion that appellant lacked the
capacity to make a knowing waiver. But the fact that the
court credited an expert’s uncontradicted opinion does not
mean it would not have reached a different conclusion had
contrary evidence been available to it. (In re R.V., 

supra, 61 Cal. 4th at 216

[court in competency proceeding need not
defer to expert’s opinion; “‘“To hold otherwise would be in
effect to substitute a trial by ‘experts’ for a trial by [the
finder of fact]”’”].)
       Nor does Dr. Knapke’s single-paragraph letter inspire
such confidence in his opinion that appellant could not have
dispelled any doubt about his competence. The letter
focused almost exclusively on appellant’s misapprehension of
the purpose of the upcoming proceeding, including his desire
for a jury to consider evidence relating to his underlying
offense.4 As explained, however, in the context of appellant’s


4     As noted, Dr. Knapke’s letter stated that appellant “[was]
very confused . . . about the nature of the upcoming proceedings,”
(Fn. is continued on the next page.)


                                       13
competency, the relevant question was not whether he then
possessed the necessary knowledge to make an informed
waiver decision, but whether he had the capacity to
understand the decision, once informed of his right to make
it. (See 

Tran, supra

, 61 Cal. 4th at 1167; 

Blackburn, supra

,
61 Cal.4th at 1125.)
      Moreover, even assuming appellant was incompetent to
make a jury-waiver decision at the time of his interview with
Dr. Knapke, we could not conclude he would necessarily
have been in a similar state almost a week later, at the time
of the April 25 hearing. Indeed, Dr. Plotkin, the People’s
expert, apparently agreed after appellant’s testimony that
his mental state had significantly improved from the time of
their April 15 interview, 10 days before the pretrial hearing
at issue. On the record before us, we are not confident the




“argued about evidence against him in his committing offense as
if he believed that his upcoming court proceedings in the mental
health court are related to litigation involving the committing
offense,” “insisted that his attorney is not following up with the
evidence to exonerate him from the crime itself, “does not
understand basic courtroom proceedings, especially in regards to
the nature of his upcoming court proceedings,” and “believes that
a jury should listen to new evidence involved in the underlying
crime because he believes they will find him not guilty.” He
further described appellant as “very psychotic and heavily
medicated.”


                               14
violation of appellant’s right to be present at the April 25
hearing was harmless beyond a reasonable doubt.5




5     We need not consider whether a jury trial might have
yielded a more favorable outcome for appellant. Accepting an
invalid jury-trial waiver results “in a complete denial of the
defendant’s right to a jury trial,” and thus “automatically
requires reversal.” 

(Tran, supra

, 61 Cal.4th at 1169.)


                               15
                         DISPOSITION
       The order extending appellant’s commitment is
conditionally reversed, and the matter is remanded for the
trial court to conduct a hearing in appellant’s presence to
determine his current competence to waive his right to a jury
trial. The extension order shall be reinstated if: (1) the
court again finds appellant incompetent to waive his jury
rights; (2) appellant knowingly and voluntarily waives his
right to a jury; or (3) a jury finds the People’s petition true.
       CERTIFIED FOR PUBLICATION



                                           MANELLA, P. J.



     We concur:



     COLLINS, J.



     CURREY, J.




                              16
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