People v. Luna CA6

Filed 3/1/13 P. v. Luna CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037527 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 171019)

v.

BELLO LEE LUNA,

Defendant and Appellant.

Defendant Bello Lee Luna challenges the trial court‟s order extending his commitment as a mentally disordered offender (MDO). He contends that the trial court prejudicially erred in failing to advise him of his right to a jury trial and obtain his personal waiver of that right. We affirm.

I. Background A petition to extend Luna‟s commitment was filed in June 2011. Luna had suffered prior convictions for criminal threats and false imprisonment, and he originally had been committed as an MDO in 1995. His commitment had been repeatedly extended since then. Luna was not present at the first hearing on the petition on June 15, 2011, but he was represented by counsel. The same was true at three subsequent hearings in June and July.

Luna also was not present at a hearing on August 19, 2011. The following colloquy occurred at the August hearing. “THE COURT: . . . And it‟s my understanding the respondent is asking for a trial. He‟s waiving jury; correct? [¶] MR. SHARKEY [Luna‟s counsel]: That‟s right, Your Honor.” The prosecutor also waived jury trial. The trial was set for October 24. Luna was present at the October 24, 2011 trial. At the outset, the court stated that “this is an agreed-upon court trial for extension of his MDO status, I believe.” The prosecutor confirmed as much, and Luna‟s trial counsel affirmed that he was ready to proceed. Luna said nothing. The sole witness at the trial was Dr. Mendel Feldsher. Feldsher, a psychiatrist, testified as an expert on diagnosis and treatment of mental disorders and on risk assessment. Luna‟s trial counsel did not challenge Feldsher‟s expertise. Feldsher testified that he had interviewed Luna, reviewed his records, and consulted with Luna‟s current treating psychiatrist. In his expert opinion, Luna posed “a substantial risk of physical harm to others by reason of his severe mental disorder.” Feldsher found the “most consistent” diagnosis to be that Luna was a paranoid schizophrenic. Although Luna had also been previously diagnosed with schizoaffective disorder bipolar type, Feldsher found no evidence in Luna‟s records of “a discrete manic episode or depressive episode” even though there was evidence that Luna had experienced “some significant depressive symptoms.” While schizoaffective disorder might also be an appropriate diagnosis, Feldsher simply did not find enough evidence in the records to support that diagnosis at this time. Feldsher explained the basis for his opinion that Luna posed a substantial risk of physical harm to others. Luna experienced “paranoid delusional beliefs.” Luna told Feldsher that Luna was “being held hostage” by hospital staff to “make money” for the state. Luna also told Feldsher “that I should be scared for my wife and for myself if I