People v. Bona

15 Cal.App.5th 511

223 Cal.Rptr.3d 649

The PEOPLE, Plaintiff and Respondent,

v.Thomas D. BONA, Defendant and Appellant.

2d Crim. No. B277751

Court of Appeal, Second District, Division 6, California.

Filed September 20, 2017

As Modified on Denial of Rehearing October 19, 2017

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

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Acting Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

PERREN, J.

As a condition of his parole, Thomas D. Bona was committed to the State Department of Hospitals for treatment as a mentally disordered offender (MDO) ( Pen. Code,¹ § 2962 ). The trial court ordered the commitment after it denied Bona's petition challenging the Board of Parole Hearings' (BPH) determination that he met the MDO criteria. (§ 2966, subd. (b), hereinafter § 2966(b).) Bona appeals, contending that (1) the court abused its discretion in continuing the hearing on his petition beyond the 60-day period set forth in section 2966(b); and (2) his trial attorney provided ineffective assistance of counsel by failing to (a) seek writ review from the orders granting the continuances, and (b) raise a Sanchez² objection to case-specific hearsay expert testimony offered at the hearing.

We conclude that the 60-day timeline set forth in section 2966(b) is directory rather than mandatory and that Bona was not prejudiced by the continuance of his hearing a week beyond that timeline. We also reject Bona's claims of ineffective assistance of counsel. His first claim is forfeited and in any event fails for lack of prejudice. Although Sanchez applies in MDO proceedings to the extent it clarifies the admissibility of expert testimony under the Evidence Code, Bona fails to show that his attorney could have had no legitimate tactical reason for declining to make a Sanchez objection here. He also fails to show it is reasonably probable that such an objection would have led to a more favorable result. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Bona was convicted of elder abuse (§ 368, subd. (b)(1)) and sentenced to four years in state prison. In February 2016, the BPH determined that Bona met the MDO criteria and sustained the requirement of treatment as a condition of his parole. Bona petitioned for the appointment of counsel and a hearing (§ 2966(b)) and waived his right to a jury.

Psychologist Meghan Brannick testified as the prosecution's expert at the hearing. Dr. Brannick interviewed Bona, reviewed his medical records and legal history, and spoke to his treating psychologist and psychiatrist.

Based on this information, Dr. Brannick concluded that Bona suffers from a severe mental disorder, i.e., schizophrenia. His symptoms of the disorder included auditory hallucinations, paranoia, delusional and disorganized thought processes, depressed mood, flat affect, sleep disturbance, and agitation.

Dr. Brannick opined that Bona's schizophrenia was an aggravating factor in his commitment offense, was not in remission as of the date of the BPH hearing, and could not be kept in remission without treatment. At the time of the offense, Bona had a longstanding history of psychotic behavior and had not taken his prescribed medications for about a month. Shortly before the offense, he was heard talking to himself about killing; after the offense, he could not recall what he had done. He exhibited multiple psychotic symptoms during the months preceding the BPH hearing and required an involuntary medication order.

Dr. Brannick also opined that Bona represented a substantial danger of physical harm to others by reason of his mental disorder. The doctor noted Bona's history of violent behavior when he is symptomatic, a prior incident when he discharged a firearm while he was not taking his medication, two prison rules violations that were related to his mental disorder, his lack of an acceptable discharge plan, and his lack of insight into his disorder.

Chico Police Sergeant Scott Harris testified regarding the facts of Bona's commitment offense. On August 27, 2012, Sergeant Harris responded to a report of an assault at a store. The sergeant spoke with the victim, who had a laceration under one of his eyes and a bruised nose. The victim subsequently identified Bona as his assailant. Bona told Sergeant Harris that he went to the store to buy a CD and that he recalled "punching" a CD rather than a person.

DISCUSSION

Continuances

Over Bona's objection, the trial court continued his MDO hearing one day beyond the 60-day period set forth in section 2966(b).³ The court subsequently granted an additional six-day continuance. The prosecutor purported to show good cause for the continuances by offering that she needed the additional time to present Sergeant Harris's testimony regarding the facts of Bona's commitment offense, as contemplated in People v. Stevens (2015) 62 Cal.4th 325, 195 Cal.Rptr.3d 762, 362 P.3d 408 ( Stevens ).⁴ Bona contends that both continuances were an abuse of discretion. In a supplemental brief, he further contends that his trial counsel provided ineffective assistance by failing to seek writ relief from the challenged continuances.

Bona's ineffective assistance claim is forfeited because it was not raised in the opening brief. ( People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219, 200 Cal.Rptr.3d 265, 367 P.3d 649.) In any event, the claim lacks merit.

"When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." ( People v. Hung Thanh Mai (2013) 57 Cal.4th 986, 1009, 161 Cal.Rptr.3d 1, 305 P.3d 1175 ( Hung Thanh Mai ).)

"[I]t is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" ( Hung Thanh Mai , supra , 57 Cal.4th at p. 1009, 161 Cal.Rptr.3d 1, 305 P.3d 1175.)

Bona's claim of ineffective assistance is based on the premise that the standard of review would have been more favorable to him—i.e., no showing of prejudice would have been necessary—had counsel sought pretrial writ relief from the challenged continuances. The case he offers as support for this premise analogizes the "speedy trial" rights of a minor who is the subject of a wardship petition under Welfare and Institutions Code section 601 or 602 with a criminal defendant's statutory right to a speedy trial under section 1382. ( In re Chuong D. (2006) 135 Cal.App.4th 1303, 1309-1310, 38 Cal.Rptr.3d 351 ( Chuong D. ))⁵

An analogy to section 1382 is inapt here. That section states that a felony case "shall ... be dismissed" when the defendant has not been brought to trial within 60 days of arraignment. (Id. , subd. (a)(1)(2).) Because the statute provides a penalty of dismissal for noncompliance, the 60-day timeline is mandatory. Accordingly, a defendant seeking pretrial writ review of an order denying a motion to dismiss under section 1382 need only demonstrate that the motion was erroneously denied, i.e., no showing of prejudice is necessary. (See Martinez , supra , 22 Cal.4th at p. 769, 94 Cal.Rptr.2d 381, 996 P.2d 32 ; People v. Johnson (1980) 26 Cal.3d 557, 575, 162 Cal.Rptr. 431, 606 P.2d 738.)

Section 2996(b), however, does not provide any penalty, sanction, or other consequence for noncompliance with its 60-day requirement. Accordingly, this timeline is merely directory. (See People v. Williams (1999) 77 Cal.App.4th 436, 451, 92 Cal.Rptr.2d 1 [section 2972, subdivision (a)'s requirement that the trial on an MDO recommitment petition "shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown" is directory rather than mandatory]; see also People v. Tatum (2008) 161 Cal.App.4th 41, 57, 73 Cal.Rptr.3d 718, disapproved on another ground in People v. Lara (2010) 48 Cal.4th 216, 225, fn. 26, 106 Cal.Rptr.3d 208, 226 P.3d 322 ["[A]part from the requirement that a [recommitment] petition be filed prior to the offender's release date (§ 2972, subd. (e)), the statutory time limits contained in the MDO Act are not ‘mandatory’ or ‘jurisdictional,’ but ‘directory’ "].)

Because the 60-day timeline in section 2966(b) is directory rather than mandatory, any violation of that timeline does not render the proceeding invalid unless it amounts to a due process violation. ( People v. Tatum , supra , 161 Cal.App.4th at p. 57, 73 Cal.Rptr.3d 718.) The determination whether such a violation has occurred "requires consideration of the facts and circumstances of the case and a subsequent ‘balancing of any prejudicial effect of the delay against the justification for the delay.’ [Citations.]" ( Ibid. ) "Except where there has been an extended delay, prejudice will not be presumed, and it will be incumbent upon the defendant to...