People v. Pardew CA4/1 ( 2022 )

Filed 8/10/22 P. v. Pardew CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080106
Plaintiff and Respondent, (Super. Ct. No. SCD220336)
v.
JERRY PARDEW,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Steven E. Stone, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court of Appeal, for
Defendant and Appellant.
I.
INTRODUCTION
Jerry Pardew appeals from a judgment following a bench trial
recommitting him as a mentally disordered offender (MDO) pursuant to
Penal Code sections 2970 and 2972.1 His counsel on appeal has filed an
opening brief asking this court to conduct an independent review of the
1 Undesignated statutory references are to the Penal Code.
record pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and
People v. Wende (1979) 25 Cal.3d 436 (Wende). We granted Pardew the
opportunity to file a supplemental brief on his own behalf, and he has done
so. We have reviewed the briefing submitted by counsel and by Pardew and
affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2009, Pardew pled guilty to one count of resisting an
executive officer and two counts of threatening a state official or judge. He
also admitted one prison prior and two strike priors. The court sentenced
him to 32 months in prison. On December 2, 2011, Pardew was admitted to
Atascadero State Hospital as an MDO pursuant to section 2962. Since then,
Pardew’s commitment has been extended seven times. He submitted to the
first commitment extension without a trial. The second, third, fourth, and
fifth extensions were by jury trial. Pardew waived his right to a jury trial for
the sixth and seventh extension proceedings.2
Pardew’s most recent commitment was set to expire on December 2,
2021. The People again petitioned for continued involuntary treatment of
Pardew as an MDO. On March 1, 2022, Pardew personally moved to dismiss
the petition on the ground that his right to a speedy trial had been violated.
After the trial court denied this motion, Pardew personally moved to waive
his right to a jury trial. The court heard from Pardew and his counsel,
advised Pardew of his right to a jury trial, and then recessed to allow Pardew
2 Pardew appealed the propriety of his jury waiver for his seventh
commitment extension proceeding. (People v. Pardew (Jan. 25, 2022,
D079093) [nonpub. opn.] (Pardew I, the prior opinion).) On our own motion,
we take judicial notice of our prior opinion and derive the facts, in part, from
our prior opinion. (Evid. Code, §§ 452, subd. (d), 459.)
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to speak with his counsel. After the recess, defense counsel stated that
Pardew still desired a bench trial. The court confirmed that defense counsel
had advised Pardew of his absolute right to a jury trial and that three
witnesses would be appearing by video. When questioned by the court,
Pardew affirmatively stated that he wished to waive his right to a jury trial
and agreed that three witnesses could appear by video. The court found that
Pardew had knowingly, intelligently, voluntarily waived his right to a jury
trial.
Pardew’s bench trial commenced on the same day and was completed
the following day. Pardew’s Department of State Hospitals (DSH) treating
psychiatrist, Dr. Calvin Kilcrease and DSH staff psychologist, Dr. Robin
Campbell, testified that Pardew suffered from schizophrenia. Dr. Kilcrease
stated that Pardew’s antipsychotic medications kept him stable but opined
that Pardew could not be kept in remission if released and that he would be a
danger to the public because he had not acknowledged his illness,
participated in treatment, or taken steps to recognize the symptoms and risks
that his illness presented. Dr. Campbell similarly testified that even if
Pardew were in remission, he could not remain in remission without
treatment because of his consistent failure to participate in treatment. Dr.
Campbell opined that Pardew remained a danger because of his lack of
insight into the severity of his mental disorder and his history of violence. In
addition, neither Dr. Kilcrease nor Dr. Campbell believed that Pardew would
continue to take his medication in an unsupervised setting.
DSH clinical social worker, Hope McNutt, testified that Pardew had no
behavioral issues while at the hospital and that he was medication
compliant. However, he did not meaningfully participate in treatment. Staff
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psychologist, Dr. Emi Komaki, confirmed that Pardew lacked insight into his
illness and did not participate in treatment groups.
The trial court appointed two psychologists, Drs. David Bloch and
Nicole Friedman, to evaluate Pardew and determine whether he met the
MDO criteria. Both reviewed Pardew’s extensive DSH records and attempted
to interview him but Pardew declined to be interviewed. Based on their
respective reviews of Pardew’s records, both opined that Pardew suffered
from schizophrenia, was not in remission, and could not be kept in remission
because he lacked insight into his mental illness and did not participate in
treatment. Dr. Bloch also stated that Pardew would pose a substantial
danger to others if released because he would likely not take his medications
and would relapse into substance abuse and revert to his previous “assaultive
and aggressive” behaviors.
Pardew testified on this own behalf. He did not believe that he had
schizophrenia and claimed that his worst mental health symptom was
paranoia.
After hearing closing arguments, the trial court found true the
elements required to extend Pardew’s commitment until December 2, 2022,
i.e., that the People had proved beyond a reasonable doubt that: (1) Pardew
has a severe mental disorder; (2) his disorder is not in remission or cannot be
kept in remission without treatment; and (3) by reason of that disorder,
Pardew represents a substantial danger of physical harm to others. (§ 2970;
People v. Burroughs (2005) 131 Cal.App.4th 1401, 1404.) Pardew timely
appealed.
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III.
DISCUSSION
Pardew’s appointed appellate counsel has filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738,
setting forth a statement of the case, a summary of the facts and potential
arguable issues, and requesting that this court conduct an independent
review of the record. Counsel raised no specific issues on appeal and instead,
identified a possible, but not arguable, issue pursuant to Anders: whether
sufficient evidence supported Pardew’s recommitment. Counsel
acknowledges authority holding that MDO commitment cases such as this
are exempt from Anders/Wende procedures. (People v. Taylor (2008) 160
Cal.App.4th 304 (Taylor).) In Taylor, the court stated that “appeals from civil
commitments under the Mentally Disordered Offender Act are . . . exempt
from the Anders/Wende review requirements.” (Id. at pp. 307–308.)
This court generally follows Taylor, supra, 160 Cal.App.4th 304, and
dismisses such appeals. However, in this case, unlike in Taylor, Pardew filed
a supplemental brief. Accordingly, in the absence of Supreme Court
authority to the contrary, we will adhere to the Wende procedure in the
present case, where counsel has already undertaken to comply with Wende
requirements and defendant has filed a supplemental brief. (See People v.
Cole (2020) 52 Cal.App.5th 1023, 1040 [“if the defendant files a supplemental
brief, the Court of Appeal is required to evaluate any arguments presented in
that brief and to issue a written opinion that disposes of the trial court’s
order on the merits (that is, by affirming, reversing or other like disposition)”]
In his 13-page letter brief, Pardew recounts events that occurred in his
original trial and prior recommitment proceedings. As to the recommitment
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proceeding at issue in this appeal, Pardew argues that the trial court erred in
denying his motion to dismiss on speedy trial grounds. We disagree.
The trial on an MDO extension petition “shall” begin at least 30
calendar days before “the time the person would otherwise have been
released, unless the time is waived by the person or unless good cause is
shown.” (§ 2972, subd. (a)(2).) Pardew’s commitment was scheduled to end
on December 2, 2021, and trial commended on March 1, 2022. At the outset
of the trial, Pardew stated that he had not waived time and argued that the
petition should be dismissed because “December 2nd was the last day to try
this case. December 2nd was in -- it’s been 87 days forward, and we’re still
not -- you know, we’re just now getting to trial.”
The trial court referred to the record before ruling on the motion. A
minute order dated December 10, 2021, noted that Pardew was in medical
isolation awaiting a physician’s evaluation. The minute order for a January
14, 2022, hearing stated that the court found that Pardew’s quarantine in the
State Hospital constituted good cause for a continuance. The court set trial
on the recommitment petition for February 28, 2022. A minute order dated
February 25, 2022, did not address the issue of good cause but confirmed the
February 28 trial date. The minute order for the February 28 hearing trailed
the matter to the following day, March 1. Based on this record, the court
denied Pardew’s motion to dismiss. The court found that “there was
previously good cause found. To the extent it wasn’t found based upon the
minute orders that the defendant was quarantined in medical isolation, this
court would find that there was good cause to continue this matter to today’s
date.”
The 30-day time limit of section 2972, subdivision (a) is directory, not
mandatory or jurisdictional. (People v. Tatum (2008) 161 Cal.App.4th 41, 56–
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57, disapproved in part on another ground in People v. Lara (2010) 48 Cal.4th
216, 236, fn. 26; People v. Williams (1999) 77 Cal.App.4th 436, 451, 456.) We
review the trial court’s finding of good cause for abuse of discretion. (People
v. Fernandez (1999) 70 Cal.App.4th 117, 133.)
We conclude that the trial court did not abuse its discretion in finding
good cause for the People’s failure to meet the 30-day deadline to commence
the recommitment trial. Other than the unexplained one day delay when the
trial date was moved from February 28 to March 1, all other delays in
bringing this matter to trial were caused by Pardew’s medical isolation or
hospitalization. Pardew does not contest that his medical isolation and
quarantine constituted good cause for delaying his trial. Nor does Pardew
explain how the trial continuances prejudiced him. Accordingly, we reject his
argument that the trial court erred when it denied his motion to dismiss.
DISPOSITION
The judgment is affirmed.
AARON, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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