People v. Bramscher CA2/6 ( 2023 )

Filed 10/16/23 P. v. Bramscher 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B325075
(Super. Ct. No. 22PT-00629)
Plaintiff and Respondent, (San Luis Obispo County)
v.
WILLIAM BRAMSCHER,
Defendant and Appellant.
William Bramscher appeals from the trial court's order
declaring him an offender with a mental health disorder (OMHD)
as described in Penal Code section 2962.1 He was diagnosed as
suffering from a “delusional disorder.” He had two qualifying
offenses for making criminal threats in violation of section 422,
1 All statutory references are to the Penal Code.
subdivision (a). The trial court committed him to the Department
of State Hospitals for treatment.
Appellant contends the trial court failed to advise him of
his right to a jury trial and also failed to obtain a personal waiver
of that right. In addition, he contends the evidence is insufficient
to show he had “been in treatment for [his] severe mental health
disorder for 90 days or more within the year prior to [his] parole
release day.” (§ 2962, subd. (d)(1).) We affirm.
Jury Waiver
Facts
On September 20, 2022, the following colloquy occurred
between appellant’s counsel and the trial court judge:
“[COUNSEL:] “As I indicated, Your Honor, I had
spoken to Mr. Bramscher last week, and he will be
waiving jury trial, proceeding with a court trial. . . .
“THE COURT: All right. Very well.”
Appellant was present during the above colloquy and
remained silent.
On October 11, 2022, the following colloquy occurred
between a different judge and appellant:
“THE COURT: . . . [A]s I understand it, Mr.
Bramscher, you've already waived your right to a
jury trial; is that right?
“[APPELLANT]: Yes, sir. My recollection as well,
Your Honor, is it's been waived for Court trial, that's
correct.
“THE COURT: Okay. And that's still what you want
to do?
“[APPELLANT] That is still what I want to do, Your
Honor.
“THE COURT: Very good.”
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Appellant Was Advised of His Right to
a Jury Trial and Waived that Right
“People v. Blackburn (2015) 61 Cal.4th 1113 . . . holds that
a trial court must advise a defendant in an [OMHD]
recommitment hearing of his or her right to a jury trial. . . .
Blackburn means what it says and applies to all [OMHD]
hearings, including original commitment hearings.” (People v.
Blancett (2017) 15 Cal.App.5th 1200, 1202.) A defendant in an
OMHD proceeding “must be personally advised of the right to a
jury trial, and . . . any waiver thereof must be personal, knowing,
and voluntary.” (Id. at p. 1204.)
Appellant claims he was not personally advised of his right
to a jury trial. We disagree. On October 11, 2022, the trial court
personally advised him of this right when it said, “[A]s I
understand it, Mr. Bramscher, you’ve already waived your right
to a jury trial; is that right?” (Italics added.)
Appellant claims he did not personally waive his right to a
jury trial. We again disagree. Appellant personally waived this
right when he told the court that he “still” wanted to waive it.
Appellant notes that the trial court did not follow the
guidelines set forth by our Supreme Court in People v.
Sivongxxay (2017) 3 Cal.5th 151, 169-170 (Sivongxxay). The
court “recommend[ed] that trial courts advise a defendant of the
basic mechanics of a jury trial in a waiver colloquy, including but
not necessarily limited to the facts that (1) a jury is made up of 12
members of the community; (2) a defendant through his or her
counsel may participate in jury selection; (3) all 12 jurors must
unanimously agree in order to render a verdict; and (4) if a
defendant waives the right to a jury trial, a judge alone will
decide his or her guilt or innocence.” (Id. at p. 169.) The court
“also recommend[ed] that the trial judge take additional steps as
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appropriate to ensure, on the record, that the defendant
comprehends what the jury trial right entails. A trial judge may
do so in any number of ways—among them, by asking whether
the defendant had an adequate opportunity to discuss the
decision with his or her attorney, by asking whether counsel
explained to the defendant the fundamental differences between
a jury trial and a bench trial, or by asking the defendant directly
if he or she understands or has any questions about the right
being waived.” (Id. at pp. 169-170.)
Because the trial court did not follow the Sivongxxay
guidelines, appellant argues, “Even if appellant’s statement that
he still did not want a jury trial on October 11[, 2022] is
construed as a waiver, there is nothing in this record that
establishes the statement was knowing and informed . . . .” But a
trial court’s failure to follow the Sivongxxay guidelines does not
necessarily result in the absence of a valid jury waiver. The
Supreme Court stated: “[W]e emphasize that our guidance is not
intended to limit trial courts to a narrow or rigid colloquy.”
(Sivongxxay, supra, 3 Cal.5th at p. 170.) “Our precedent has not
mandated any specific method for determining whether a
defendant has made a knowing and intelligent waiver of a jury
trial in favor of a bench trial. We instead examine the totality of
the circumstances.” (Id. at p. 167.) “[A] trial court’s adaptation
of or departure from the recommended colloquy in an individual
case will not necessarily render an ensuing jury waiver
invalid. . . . Reviewing courts must continue to consider all
relevant circumstances in determining whether a jury trial
waiver was knowing, intelligent, and voluntary.” (Id. at p. 170.)
“[U]ltimately, a ‘“defendant’s rights are not protected only by
adhering to a predetermined ritualistic form of making the
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record. Matters of reality, and not mere ritual, should be
controlling.”’” (Ibid.)
Considering the totality of the circumstances, we conclude
that appellant voluntarily, knowingly, and intelligently waived
his right to a jury trial. Appellant was represented by counsel
who “initiated the request for a court trial.” (Sivongxxay, supra,
3 Cal.5th at p. 167.) It is reasonable to infer that counsel
discussed the jury waiver with his client. Counsel told the court
that he “had spoken to [appellant] last week, and [appellant] will
be waiving jury trial . . . .” Appellant was present and did not
dispute counsel’s statement.
Moreover, appellant was well acquainted with jury trials.
He acknowledges that “[t]he criminal conviction underlying the
[OMHD] commitment arose from jury trial proceedings where he
represented himself the entire time.” Appellant therefore knew
what he was giving up when he waived his right to a jury trial.
(See Parke v. Raley (1992) 506 U.S. 20, 37 [“We have previously
treated evidence of a defendant's prior experience with the
criminal justice system as relevant to the question whether he
knowingly waived constitutional rights”].)
Alleged Insufficiency of the Evidence
Substantial Evidence Supports the Finding that Appellant
Received at Least 90 Days of Treatment for His Disorder
One of the criteria for commitment as an OMHD is that
“the prisoner has been in treatment for the severe mental health
disorder for 90 days or more within the year prior to the
prisoner’s parole release day.” (§ 2962, subd. (d)(1).) Appellant’s
parole release day was July 19, 2022. Appellant claims the
evidence is insufficient to support the trial court’s finding that he
had received the required 90 days of treatment.
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“The substantial evidence rule applies to appellate review
of the sufficiency of the evidence in [OMHD] proceedings.
[Citation.] We review the record in the light most favorable to
the judgment to determine whether it discloses substantial
evidence—‘evidence that is reasonable, credible, and of solid
value’—such that a reasonable trier of fact could find beyond a
reasonable doubt that [appellant received the required 90 days of
treatment].” (People v. Labelle (2010) 190 Cal.App.4th 149, 151.)
Substantial evidence supports the trial court’s finding that
appellant received 90 days of treatment for his mental health
disorder within the year prior to his parole release day of July 19,
2022. The trial court primarily relied on the testimony of Dr.
Trayci Dahl and a mental health progress note prepared by Dr.
Moeen Bhatti.
Dr. Dahl testified that on October 10, 2019, appellant was
received at the California Department of Corrections and
Rehabilitation (CDCR). “[H]e was placed into mental health
within five days.” From October 15, 2019 until the date of Dr.
Dahl’s evaluation of appellant in May 2022, he received
treatment at “the triple-CMS level of care.” This was the “least
intensive level[]” of mental health treatment at CDCR. “He
would go and have talk therapy, he would see a psychiatrist, not
take medications, and he had groups he was assigned to.” In
June 2022 appellant was admitted to Atascadero State Hospital.
Appellant testified: “Within the first couple days at
[CDCR], I was approached during questioning about mental
health services and asked if I would like to speak to somebody
about mental health and I said, ‘yes.’ So the triple-CMS program
was patient-initiated by myself.”
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Appellant observes that, without a diagnosis of his mental
disorder, his participation in the triple-CMS program was not
enough to satisfy the 90-day treatment requirement. “The
diagnosis determines the treatment the patient receives.
[Citation.] . . . [T]he ‘therapeutic process’ begins with observation
and the ‘diagnosis to determine whether treatment is required.’
[Citation.] [¶] In [OMHD] cases where the treating doctors have
not diagnosed the severe mental disorder, there is insufficient
evidence to support a finding that they treated the defendant for
that disorder.” (People v. Bendovid (2018) 30 Cal.App.5th 585,
591.) Appellant argues, “Here there was no evidence that a
doctor [at CDCR] ever diagnosed delusional disorder and ordered
treatment.”
Substantial evidence shows that at CDCR appellant was
diagnosed with a delusional disorder. It is reasonable to infer
that he was treated for this disorder, but the treatment may have
been hindered by his refusal to take psychotropic medication. A
CDCR mental health progress note dated August 2, 2021, almost
one year before his parole release day, said that appellant “is
currently diagnosed provisionally with Delusional disorder,
Erotomanic type.” On March 29, 2022, almost four months before
appellant’s parole release day, Dr. Moeen Bhatti saw appellant
and wrote: “I saw the patient few months ago . . . . Patient is still
delusional. At the same time there are no safety concerns and he
does not want to take any psychotropic meds at this point in
time.” (Italics added.) Dr. Bhatti continued: “I offered him an
SSRI[2] but [he] did not want to take that. We agreed that if he
2 “Selective serotonin reuptake inhibitors (SSRIs) are the
most commonly prescribed antidepressants” <https://www.
mayoclinic.org/diseases-conditions/depression/in-depth/ssris/art-
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changes his mind or the intensity and frequency of symptoms
increase he would put a request to be seen by me.” Dr. Kevin
Perry testified: “While incarcerated [at CDCR], [appellant]
consistently declined to take psychotropic medication. And then
when he was admitted to the state hospital and a doctor
prescribed such medicine for him, he refused it on the 21st, as
well as the 22nd of June, this year [2022].”
The trial court stated: “I've spent quite a bit of time
reviewing the records from CDCR, the treatment records . . . .
There were many references in the progress notes referring to
[appellant] continuing to have delusional themes . . . . [¶] So it
does appear to the Court that [he was] being treated for a
delusional disorder while at CDCR.” The trial court’s conclusion
was reasonably based on the evidence.
Disposition
The order committing appellant for treatment to the
Department of State Hospitals as an OMHD is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
20044825> [as of Aug. 24, 2023], archived at <https://
perma.cc/SVS5-S5AN>.
8
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.