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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Steven Alan JENKINS, Defendant and Appellant.


Decided: December 21, 1984

John K. Van de Kamp, Atty. Gen., and Robert M. Foster and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent. Paul Bell, San Diego, for defendant and appellant.

Steven Alan Jenkins appeals the order extending his commitment to a state hospital as a person who was found not guilty by reason of insanity.   (Pen.Code § 1026.5) 1  We affirm.

In March of 1978, Jenkins was found not guilty by reason of insanity on charges of arson (former § 448a) 2 and burglary (§ 459) involving an incident at the Oneonta School.   He was committed to Patton State Hospital under the provisions of section 1026.   In August of 1981, Jenkins' commitment was extended for two years pursuant to section 1026.5, subdivision (b).

The extension petition giving rise to this appeal was filed in May of 1983.   The petition alleged Jenkins had committed arson by setting fire to a school, “an act which poses a serious threat of bodily harm to another person” the statutory language of section 1026.5, subdivision (b)(1).3  It was further alleged Jenkins still suffered from a mental disease, defect, or disorder and represented a substantial danger of physical harm to others.   Finding these allegations true, the court ordered Jenkins' commitment extended for an additional two years.


 Section 1026.5, subdivision (a)(1) provides that a person convicted of a felony and later sent to a state hospital may not be kept in actual custody longer than the maximum term of commitment which could have been imposed for the offense or offenses of which that person was convicted.  (See In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097.)   Section 1026.5, subdivision (b)(1) qualifies this rule by permitting the commitment to be extended when the defendant has committed one of a number of specified crimes or “had been found guilty of a felony involving ․ an act which poses a serious threat of bodily harm to another person, and who by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.”  (See fn. 3 ante.)   When read together with (b)(6), subdivision (b)(1) requires the court or jury to make two separate findings before the defendant may be recommitted.   First, it must find that the defendant's crime falls within one of the categories specified in (b)(1), each of which focuses on the dangerousness of the defendant at the time of the crime's commission.   We refer to this finding as the “offense-related predicate.”   The court or jury must then also determine that the defendant continues to represent a “substantial danger” to others at the present time.   This finding constitutes the “continuing danger predicate.”

Jenkins does not challenge the court's finding that he continues to represent “a substantial danger of physical harm to others.”   Rather, he concentrates on the offense-related predicate which focuses on the offense of which he was originally “found guilty.” 4  He correctly notes that his crime of arson (§ 451, subd. (c)) is not specifically listed in section 1026.5, subdivision (b)(1) and he further argues that the prosecutor in the recommitment proceeding presented no evidence to support the allegation that the arson “pose[d] a serious threat of bodily harm to another person.”   Accordingly, he contends that a crucial element of the recommitment charge is unsupported by the evidence and that the extension order must therefore be vacated.

 The problem identified by Jenkins arises in large part from the absence of any defined procedure to deal with the preliminary aspects of a section 1026.5 recommitment.   As in other aspects of the law, issues which are in dispute should be identified before trial.   Accordingly, the defendant faced with a section 1026.5 petition should have the opportunity to admit or deny the allegations of the petition as well as, in a given case, to demur to their sufficiency.   This may take place either at or before the time set for the formal hearing on the petition.  (See § 1026.5, subd. (b)(4).)   Trial courts should be sensitive to employing such procedures as will assure that the defendant understands, to the extent possible, the two predicate issues on which findings must be made if he is to be recommitted.5

 We cannot conclude, however, that the trial court's failure to employ such procedures in the present case requires our vacating the recommitment order.   This was not the first section 1026.5 recommitment for Jenkins.   While each successive recommitment requires a de novo determination regarding the defendant's dangerousness, the offense-related predicate need only be established in the first recommitment proceeding to become res judicata on that issue.   Here, the 1983 petition specifically alleges the earlier 1981 recommitment.   The trial court was entitled to rely on the validity of the 1981 proceeding.   Although it appears from the record that no specific finding was made regarding the offense-related predicate in the 1981 proceeding, Jenkins took no appeal from the recommitment order which followed that proceeding and he is accordingly bound by it.6


At the beginning of the proceedings, the following colloquy occurred.

“THE COURT:  Steven Alan Jenkins.

“MR. ODEN:  Ready for Mr. Jenkins.

“MR. FELDMAN:  Ready for the People.

“THE COURT:  Is this going to be submitted on the transcript or papers?   What's going to happen?

“MR. ODEN:  No, your Honor.   We request a hearing, a trial.

“THE COURT:  Estimated time, two days?

“MR. FELDMAN:  Yes, your Honor.

“THE COURT:  You still want a jury trial?

“MR. ODEN:  No, non-jury.

“THE COURT:  Is he present?   Mr. Jenkins?

“Mr. Jenkins, your attorney informs me you're willing to waive jury trial and have this matter heard by a judge;  is that correct?


“THE COURT:  You're waiving your right to jury at this time.

“You're joining in the waiver, Counsel?

“MR. ODEN:  Yes.

“THE COURT:  People?

“MR. FELDMAN:  Join in the waiver.

“THE COURT:  Accept the jury waiver.   Maybe I can get you a department right away.   Let's trail.”

 Jenkins argues the court prejudicially erred in accepting the waiver without determining whether it was knowingly and intelligently made, particularly in light of Jenkins' mental problems.  (See In re Walker (1969) 71 Cal.2d 54, 57, 77 Cal.Rptr. 16, 453 P.2d 456.)

There is no question but that it would have been preferable had the court asked Jenkins specifically whether he understood his right to a jury and whether he agreed to give up that right.  “․ [A] trial court [is] well advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waiver of the rights involved.   At stake is the protection of both the accused and the People, the latter by the assurance that an otherwise sound conviction will not fall due to an inadequate record.”  In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.   But the case before us does not involve a plea of guilty where a defendant relinquishes his constitutional rights to a jury trial, confrontation and his privilege against self-incrimination.   By proceeding to trial, Jenkins retained the two latter rights.   And even Tahl acknowledges there may be circumstances when defendant's jury waiver may be inferred.  “We have no doubt that in the course of a trial a waiver of constitutional rights may be implied and need not necessarily be preceded by full explanation of each right and its consequences.”  (Id., at p. 133, 81 Cal.Rptr. 577, 460 P.2d 449.)

Here Jenkins' willingness to give up his right to a jury was stated by his counsel in response to the court's inquiry.   Without further prompting, Jenkins' counsel said he wanted a full two-day hearing, but his client did not want a jury.   Jenkins agreed.   Under such circumstances, Jenkins' knowing and intelligent waiver may be implied.   Appellate counsel does not suggest Jenkins' trial lawyer was incompetent by failing to explain to Jenkins the nature of the proceedings and the significance of his right to a jury.   On this record we can presume that Jenkins' jury waiver was preceded by his lawyer's explanation and advice.   A contention of inadequate assistance of counsel would be difficult to make since Jenkins earlier extension hearing was adversely decided by a jury.  “Certainly a court is in no position to discuss the merits of the two kinds of trial, either philosophically or tactically, with a defendant where the defendant is represented by competent counsel.   It is enough that the court determine that the defendant understands that he is to be tried by the court and not a jury.”  (People v. Acosta (1971) 18 Cal.App.3d 895, 902, 96 Cal.Rptr. 234.)   On this occasion Jenkins' decision to try his luck without a jury is understandable.

Judgment affirmed.


1.   All statutory references are to the Penal Code.

2.   The substance of former section 448a is now incorporated in section 451, subdivision (c).

3.   Section 1026.5, subdivision (b)(1) provides as follows:“A person may be committed beyond the term prescribed by subdivision (a) only under the procedure set forth in this subdivision and only if such person has been committed under Section 1026 for a felony of murder, mayhem, a violation of Section 207 or 209 in which the victim suffers intentionally inflicted great bodily injury, robbery with a dangerous or deadly weapon or in which the victim suffers great bodily injury, a violation of subdivision (a) or (b) of Section 451, a violation of subdivision 2 or 3 Section 261, a violation of Section 459 in the first degree, assault with intent to commit murder, a violation of Section 220 in which the victim suffers great bodily injury, a violation of Section 288, a violation of Section 12308.1, 12308.2, 12308.3, 12308, 12309, or 12310, or if the defendant has been found guilty of a felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person, and who by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.

4.   Needless to say, the phraseology in the statute is troubling since Jenkins was found not guilty by reason of insanity.   We assume the Legislature intended that the statute apply whenever the court or jury trying the defendant finds he committed an act which would constitute an applicable crime if he were sane.  (See generally § 1016.)

5.   We infer from the record in this case as well as the several published opinions which have dealt with section 1026.5 recommitment proceedings that the focus of the hearing is nearly always on the continuing danger predicate.   This is probably because the facts surrounding the offense-related predicate are most often free from serious dispute.   This does not, however, eliminate the need for a finding on that predicate.   If defendant's crime is specifically listed in (b)(1), the court may simply take judicial notice of the judgment which specifies the crimes of which the defendant was found not guilty by reason of insanity.   If, however, the prosecution relies on the second prong of the statute—“a felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person”—to establish the offense-related predicate, and if the defendant does not admit the allegation, some facts must be presented and a finding must be made.   Normally such facts may be found in the record at the original trial in which the defendant was found not guilty by reason of insanity.

6.   The record before us contains none of the evidence regarding the original arson offense which was before the trial court which found Jenkins not guilty by reason of insanity.   As a matter of statutory interpretation, we agree with Jenkins that the Legislature's inclusion of two varieties of arson (subds. (a) and (b) of § 451) in the specific list of predicate offenses in section 1026.5, subdivision (b)(1) strongly indicates a legislative intent that whether a given violation of section 451, subdivision (c) “poses a serious threat of bodily harm” must be resolved on a case-by-case basis.   We emphasize, however, that in making such a case-by-case determination, subdivision (b)(1) requires only that the felony involve an act which poses a serious threat of bodily harm.   The fortuity that no one was actually injured is irrelevant.  (See In re Fuller (1981) 124 Cal.App.3d 251, 255–256, 177 Cal.Rptr. 233.)   The potential for harm must be viewed from the perspective of the offender before he commits the act.   If a reasonable person in such circumstances would recognize that the act poses a serious threat of bodily harm, the statutory predicate is satisfied.In the present case, we do not know what time of day the fire was set, whether students, school personnel or others may have been on the premises, or the extent to which a fire may have endangered adjacent property owners, bystanders or firefighting personnel charged with extinguishing the blaze.   While we are inclined to think it would be an unusual arson which did not pose a serious threat of injury, the answers to these and related questions may indicate that by failing to raise the issue in the 1981 proceeding or on appeal from the recommitment order, Jenkins counsel deprived him of a “potentially meritorious defense” within the meaning of People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.  (See also People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)   Our holding is not meant to preclude an ineffective assistance claim by way of a petition for writ of habeas corpus should Jenkins and his current counsel determine there is evidence available to support it.

WIENER, Acting Presiding Justice.

BUTLER and GAMER *, JJ., concur.