Filed 1/6/22 P. v. B.P. CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B311051
(Super. Ct. No. 21PT-00059)
Plaintiff and Respondent, (San Luis Obispo County)
v.
B.P.,
Defendant and Appellant.
B.P. appeals from an order committing him for treatment
to the Department of State Hospitals as a mentally disordered
offender (MDO). (Pen. Code, § 2962 et seq.) He was diagnosed
with schizophrenia. His commitment offense was attempted rape
by means of force or fear with an enhancement for inflicting great
bodily injury. (Id., §§ 664, 261, subd. (a)(2), 12022.7, subd. (a).)
Appellant committed the offense five days after his release from
prison. Pursuant to a plea bargain, he was sentenced to prison
for six years.
Appellant’s sole contention is that his waiver of a jury trial
was invalid because the trial court failed to properly advise him
of his right to a jury trial. The Attorney General concedes that
appellant’s contention has merit and that the commitment order
must be reversed. We reject the Attorney General’s concession
and affirm. Considering the totality of the circumstances, we
conclude appellant knowingly, intelligently, and voluntarily
waived his right to a jury trial.
Proceedings in Trial Court
The trial court’s jury trial advisement and appellant’s
waiver were as follows:
“[Appellant’s Counsel]: Your Honor, I’ve spoken to
[appellant] about his jury trial rights, and he’s going to elect to
have a court trial and waive his jury trial.
“THE COURT: All right. Mr. [P.], you understand that the
question of whether you meet these criteria [the MDO criteria],
you have a right to have a jury make that decision. [Counsel]
indicates that you understand that right; is that true?
“[Appellant]: Yeah.
“THE COURT: All right. Do you want to waive that right
and have a judge make the decision?
“[Appellant]: Yeah.
“THE COURT: Okay. You join, [counsel]?
“[Appellant’s Counsel]: “I do, Your Honor.’”
Waiver of Right to Jury Trial
“‘[A] defendant’s waiver of the right to jury trial may not be
accepted by the court unless it is knowing and intelligent, that is,
“‘“made with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon
it,”’” as well as voluntary “‘“in the sense that it was the product of
a free and deliberate choice rather than intimidation, coercion, or
deception.”’”’ [Citation.] ‘[W]hether or not there is an intelligent,
2
competent, self-protecting waiver of jury trial by an accused must
depend upon the unique circumstances of each case.’” (People v.
Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) “On appeal,
we independently examine the entire record to determine
whether the defendant knowingly and intelligently waived the
right to [a jury trial].” (People v. Burgener (2009) 46 Cal.4th 231,
241.)
“[A] trial court’s failure to properly advise an MDO
defendant of the right to a jury trial does not by itself warrant
automatic reversal. Instead, a trial court's acceptance of a
defendant’s personal waiver without an express advisement may
be deemed harmless if the record affirmatively shows, based on
the totality of the circumstances, that the defendant's waiver was
knowing and voluntary.” (People v. Blackburn (2015) 61 Cal.4th
1113, 1136 (Blackburn).) “[T]he totality of the circumstances
approach permits a reviewing court to take into account events
that follow the entry of a jury waiver to confirm matters such as
the waiver’s character and scope.” (Sivongxxay, supra, 3 Cal.5th
at p. 167, fn. 2.)
People v. Blancett Is Distinguishable
In People v. Blancett (2017) 15 Cal.App.5th 1200 (Blancett),
we considered whether a prisoner had validly waived his right to
a jury trial in an MDO proceeding. We stated: “Blackburn[,
supra,] 61 Cal.4th 1113 . . . holds that a trial court must advise a
defendant in an MDO . . . recommitment hearing of his or her
right to a jury trial. . . . Blackburn means what it says and
applies to all MDO hearings, including original commitment
hearings [as in the present case]. [¶] [¶] Prior to conducting a
bench trial, the trial court must obtain personally from an MDO
defendant a knowing, intelligent, and voluntary waiver of the
3
right to a jury trial unless the court finds substantial evidence
that the defendant lacks the capacity to make such a waiver.
[Citation.]” (Blancett, at p. 1202.)
We noted that in Sivongxxay, supra, 3 Cal.5th at p. 169,
our Supreme Court had “emphasized ‘the value of a robust oral
colloquy’ in eliciting a knowing, intelligent, and voluntary waiver
of a jury trial.” (Blancett, supra, 15 Cal.App.5th at p. 1205.) In
Blancett the colloquy between the MDO defendant and the trial
court was as follows:
“‘[Counsel]: Yes. We’d like to set it for court trial.
“‘The Court: All right. So, Mr. B., [counsel] says that you
are okay with having a judge decide your case and not a jury?
“‘[Blancett]: Yes, your honor.
“‘The Court: That’s okay with you?
“‘[Blancett]: Yes, your honor.
“‘The Court: All right.’” (Blancett, supra, at p. 1203.)
We concluded that the MDO defendant in Blancett “did not
waive his right to a jury trial with full awareness of the nature of
the right being abandoned and the consequences of the decision
to abandon it.” (Blancett, supra, 15 Cal.App.5th at p. 1206.) We
explained: “The trial court did not inform Blancett that he had a
right to a jury trial, nor did the court explain the significant
attributes or mechanics of a jury trial. [Citation.] Neither did
the court inquire whether Blancett had sufficient opportunity to
discuss the decision with his attorney, whether his attorney
explained the differences between a bench trial and a jury trial,
or whether Blancett had any questions about the waiver.
[Citation.] In a barebones colloquy, the court asked only if
Blancett was ‘okay’ with a court trial instead of a jury trial.
[Citation.] . . . Indeed, the court appointed counsel moments
4
before Blancett entered his waiver and there is no record of
discussion between Blancett and his attorney prior to the waiver.
[¶] Moreover, this was Blancett’s initial MDO commitment and
the record does not suggest that Blancett was familiar with MDO
proceedings or that he was aware that he was entitled to a jury
trial.” (Ibid.) “In view of the trial court’s stark colloquy, the lack
of evidence that Blancett discussed his jury trial right and waiver
with counsel, Blancett’s inexperience with the criminal justice
system, and Blancett’s lack of familiarity with MDO proceedings,
we conclude that his waiver was not knowing and intelligent.”
(Id. at pp. 1206-1207.)
The present case is distinguishable from Blancett. Unlike
the trial court in Blancett, here the trial court expressly advised
appellant of his right to a jury trial. Appellant expressly waived
that right. In addition, appellant’s counsel said that he had
“spoken to [appellant] about his jury trial rights,” and appellant
affirmed that he “underst[oo]d” these rights. (See Blackburn,
supra, 61 Cal.4th at p. 1124 [“counsel is presumed to know the
defendant’s rights and is obligated to advise the defendant
accordingly”].) Finally, as we explain in the next section of this
opinion, appellant was not “inexperience[d] with the criminal
justice system.” (Blancett, supra, 15 Cal.App.5th at p. 1207.)
People v. Jones Is Also Distinguishable
People v. Jones (2018) 26 Cal.App.5th 420 (Jones), indicates
that appellant’s jury waiver was not valid merely because he
expressly waived his right to a jury trial and said that he
understood this right. In Jones the defendant appealed after her
conviction for second degree murder following a court trial. The
waiver of her right to a jury trial was as follows:
5
“‘[Prosecutor]: Ms. Jones, your attorney[] ha[s] indicated
that you wish to waive jury and have this case decided by Judge
Sahagun sitting alone. In order to do that, you . . . have to waive
your right to a jury trial. Ms. Jones, do you understand your
right to a jury trial?
“‘Defendant Jones: Yes, sir.
“‘[Prosecutor]: Do you agree to waive that right and have
Judge Sahagun, sitting alone, decide the case?
“‘Defendant Jones: Yes, sir.’” (Jones, supra, at p. 428.)
The appellate court held that Jones’s “waiver of her right to
a jury trial was not knowing, intelligent, and voluntary” because
“[t]he trial court’s two-question inquiry of Jones, as to whether
she ‘underst[ood] [her] right to a jury trial’ and whether she
agreed to waive that right and have the trial judge ‘sitting alone,
decide the case’ does not affirmatively show that Jones
understood the nature of the right to a jury trial she was
relinquishing.” (Jones, supra, 26 Cal.App.5th at p. 423.)
Jones’s representation by counsel did not affect the validity
of her jury waiver: The appellate court explained: “[T]he record
does not show whether Jones’s attorney ever discussed with her
the nature of a jury trial, including for example, that the jury
would be comprised of 12 of her peers from the community.
Further, the trial court did not specifically advise Jones that she
had a right to a jury trial, instead only asking her, ‘[D]o you
understand your right to a jury trial?’ She responded, ‘Yes, sir.’”
(Jones, supra, 26 Cal.App.5th at p. 435.) “The trial court did not
inquire whether Jones . . . discussed her decision with her
attorney, or whether she had any questions. . . . Because the trial
court did not advise Jones as to the specific rights she would be
giving up or inquire if her attorney explained those rights to her,
6
her bare acknowledgment that she understood her right to a jury
trial was inadequate.” (Id. at p. 436.) The court noted: “Jones
had no experience with the criminal justice system. Neither the
information nor the probation report reveals a prior criminal
charge.” (Id. at p. 437.)
The present case is distinguishable from Jones. Here the
trial court specifically advised appellant that he had a right to a
jury trial. Moreover, in contrast to Jones, appellant’s counsel
said that he had “spoken to [appellant] about his jury trial
rights,” and appellant did not contradict counsel on this point.
Finally, while “Jones had no experience with the criminal justice
system,” appellant was a veteran of that system. (Jones, supra,
26 Cal.App.5th at p. 437.) Although appellant was only 34 years
old when he committed the commitment offense, he had
accumulated a 30-page rap sheet that is included in the record on
appeal. A psychological evaluation of appellant states: “Criminal
records reveal he was first arrested at the age of 15. [¶] [¶] His
adult criminal history consists of arrests and/or convictions of
disorderly conduct, receiving stolen property, obstruct/resist
public officer, grand theft person, theft of elder/dependent adult,
possession of controlled substance (numerous), possession of
hypodermic needle/syringe without permit (numerous), use of
controlled substance (numerous), transport controlled substance
(multiple), possession of controlled substance in prison, forgery
with intent to defraud, false identification to peace officers,
violation of parole, escape attempt, possession of dangerous
weapon, carry concealed dirk or dagger, sexual battery (in prison
arrest), indecent exposure (multiple in-prison arrests), battery by
prisoner, assault by prisoner, robbery 1st, robbery 2nd, stalking,
sexual battery touch for sexual arousal, burglary 1st, assault to
7
commit rape, and false imprisonment.” The evaluation observes
that appellant “is currently serving his fourth . . . prison term.”
According to appellant’s rap sheet, he has had numerous
felony and misdemeanor convictions. For three of the many
misdemeanor convictions, the rap sheet shows that, while
represented by counsel, he waived his right to a jury trial.
The Trial Court Was Not Required to Track
the Supreme Court’s Guidelines in Sivongxxay
The Attorney General asserts, “Because the proceedings
here did not track our Supreme Court’s guidelines [in
Sivongxxay], the record fails to reveal affirmative evidence of a
knowing and intelligent waiver.” In Sivongxxay the Supreme
Court “offer[ed] some general guidance to help ensure that a
defendant's jury trial waiver is knowing and intelligent, and to
facilitate the resolution of a challenge to a jury waiver on appeal.”
(Sivongxxay, supra, 3 Cal.5th at p. 169.) 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.” (Ibid.) The court “also
recommend[ed] that the trial judge take additional steps as
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
8
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.)
Contrary to the Attorney General’s concession, a trial
court’s failure to follow the Sivongxxay guidelines does not
necessarily result in the absence of “affirmative evidence of a
knowing and intelligent 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 record. Matters of reality, and not
mere ritual, should be controlling.”’” (Ibid.)
In Sivongxxay the defendant was “a Laotian refugee with
no formal education and limited command of the English
language . . . .” (Sivongxxay, supra, 3 Cal.5th at p. 166.) “[H]e
was represented by counsel and assisted by a translator
throughout the trial.” (Id. at p. 167.) After a court trial, he was
convicted of first degree murder. The trial court found true a
special circumstance allegation and imposed the death penalty.
9
The Supreme Court upheld the validity of the defendant’s jury
waiver even though “the trial court’s waiver colloquy did not
explain that a jury must be impartial, that its verdict must be
unanimous, or that the trial court must declare a mistrial if the
jury fails to reach a verdict. The trial court also did not ask any
questions confirming that defendant understood how a jury
works, or that defendant had discussed the jury waiver with his
counsel.” (Id. at pp. 166-167.) “[T]he trial court advised
defendant that he had a right to a jury trial, that a jury consists
of 12 people from the community, that he would have the right to
participate in the selection of the jury, and that waiver of the
right to a jury would mean the judge alone would determine his
guilt or innocence and any resulting punishment. After these
advisements, defendant answered ‘Yes’ when asked whether he
wished to ‘give up [his] right to a jury trial and agree that this
Court, alone, will make those decisions.’”1 (Id. at p. 167.) Despite
1 The verbatim advisement and waiver were as follows:
“‘THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each
have a right to a trial, either by a jury of 12 people selected from
this community, through a process that you would engage in with
your attorneys, the district attorney and the Court, or a trial in
front of a judge, acting alone without a jury. [¶] The burden of
proof remains the same. The district attorney has the burden to
go forth with evidence sufficient to prove your guilt beyond a
reasonable doubt. Then, and only then, would we get to a penalty
phase. [¶] In a court trial, I would hear the evidence. I, alone,
would make the decision on whether that evidence was sufficient
to prove your guilt beyond a reasonable doubt. [¶] In the event I
made such a finding, as to either or both of you, we would then
proceed to a penalty phase, where the district attorney would
present aggravation evidence. Through your—you, through your
attorney, would have a right to present mitigation evidence, and
10
the noncompliance with the Sivongxxay guidelines, the Supreme
Court concluded, “Viewed holistically, the circumstances
surrounding defendant's jury waiver demonstrate that it was
knowing and intelligent.” (Id. at p. 168.)
Appellant Knowingly, Intelligently, and
Voluntarily Waived His Right to a Jury Trial
Considering the totality of the circumstances, we conclude
appellant knowingly, intelligently, and voluntarily waived his
right to a jury trial. “The defense initiated the request for a court
trial.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) Counsel said,
“I’ve spoken to [appellant] about his jury trial rights, and he’s
going to elect to have a court trial and waive his jury trial.” The
court informed appellant that he had a right to a jury trial. It
asked, “[Counsel] indicates that you understand that right; is
that true?” Appellant answered that he understood the right and
“want[ed] to waive that right and have a judge make the
decision.” In contrast to the waiver here, in Sivongxxay there
was no evidence “that defendant had discussed the jury waiver
with his counsel.” (Ibid.) It is arguable that, in view of counsel’s
statement that he had discussed the jury waiver with appellant,
evidence of an intelligent and knowing waiver is stronger here
than in Sivongxxay.
it would fall upon me to make the decision as to the appropriate
punishment, which could result in a death penalty sentence. [¶]
Do you give up your right to a jury trial and agree that this
Court, alone, will make those decisions, Mr. Mounsaveng?
“‘THE DEFENDANT MOUNSAVENG: Yes.
“‘THE COURT: Mr. Sivongxxay?
“‘THE DEFENDANT SIVONGXXAY: Yes.’” (Sivongxxay,
supra, 3 Cal.5th at pp. 165-166.)
11
“Although the presence of counsel does not by itself mean
‘that the defendant's interests and rights are protected . . . the
fact of counsel being present and having advised the defendant is
a factor to be considered in determining the question of the need
for or sufficiency of any admonition given by the court.
[Citations.]’ . . . Indeed, it would be to blink at the reality
disclosed by this record to conclude other than that the
[appellant’s] decision to have his fate determined by [the trial
court], rather than by a jury, was a tactical decision entered into
by [appellant] after consultation with and advice from
experienced and capable defense counsel.”2 (State v. Cobb (1999)
251 Conn. 285, 373 (Cobb); see also People v. Doyle (2016) 19
Cal.App.5th 946, 953 [waiver of jury trial valid because
“defendant’s counsel advised the trial court she had discussed
defendant’s waiver of a jury trial with him on two occasions” and
“[t]here is nothing in the record to support that defendant was
confused as to the right to a jury trial or that he did not
knowingly waive that right”]; People v. Acosta (1971) 18
Cal.App.3d 895, 902 [“We are not aware of any rule of law that
entitles a defendant who is represented by counsel and who has
discussed waiver of a jury trial with his counsel, as here, to have
the court advise him of the merits or the disadvantages of a trial
by jury, as against a court trial”]; People v. Wrest (1992) 3 Cal.4th
1088, 1105 [“There is no constitutional requirement that
appellant understand ‘all the ins and outs’ of a jury trial in order
to waive his right to one”].)
Appellant’s extensive experience with the criminal justice
system is significant. In concluding that the defendant in
2We take judicial notice that trial counsel was admitted to
the State Bar of California in 1980.
12
Sivongxxay had knowingly and intelligently waived his right to a
jury trial, our Supreme Court considered that “defendant had
prior experience with the criminal justice system, having pleaded
guilty to two prior offenses in Oregon and one in Washington
State.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) The Sivongxxay
defendant’s experience with the criminal justice system was
miniscule compared to appellant’s experience. (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”]; People v. Langdon (1959) 52
Cal.2d 425, 432 [trial court not required to “explain[] to
defendant the nature and possible consequence of his action in
waiving a jury trial” since “[d]efendant not only was represented
by counsel, but according to the record had also been before the
criminal courts on at least three previous occasions”]; Cobb,
supra, 251 Conn. at p. 372 [in concluding that defendant’s jury
waiver was valid, court took into account that “‘[t]he defendant
was not a novice in the criminal justice system’” and “had been
advised of his right to a jury trial in relation with another sexual
assault charge”]; Poore v. State (Ind. 1997) 681 N.E.2d 204, 207
[“Poore’s significant criminal history suggests a high level of
familiarity with the judicial process, making it quite likely that
he knew what a ‘jury’ was”].)
Response to Dissenting Opinion
The dissent concludes that appellant’s status as “a
mentally disordered offender who suffers from schizophrenia . . .
raises a doubt” whether he understood the significance of the
right he was waiving. (Dis. Opn., post, at p. 1.) The dissent puts
too much emphasis on appellant’s mental illness at the expense
13
of “the totality of the circumstances presented here.”
(Sivongxxay, supra, 3 Cal.5th at p. 189.) “A schizophrenic
condition does not render a defendant incapable of effectively
waiving his rights.” (People v. Watson (1977) 75 Cal.App.3d 384,
397.) The California Supreme Court found that a 13-year-old
minor had knowingly and intelligently waived his Miranda rights
(Miranda v. Arizona (1966) 384 U.S. 436) despite his “young age
and low intelligence” and his diagnosis as a “paranoid
schizophrenic.” (People v. Lewis (2001) 26 Cal.4th 334, 384.)
The dissent overlooks the crucial role of counsel. “Counsel
is presumed competent and informed as to applicable
constitutional and statutory law. . . . Counsel . . . can be
expected, where necessary or advisable, to consult with the client
about jury trial concerns. [Citation.]” (People v. Barrett (2012) 54
Cal.4th 1081, 1105; see also Conservatorship of John L. (2010) 48
Cal.4th 131, 151 [“Like all lawyers, the court-appointed attorney
is obligated to keep her client fully informed about the
proceedings at hand, [and] to advise the client of his rights”];
People v. Daniels (2017) 3 Cal.5th 961, 996 (lead opn. of Cuéllar,
J.) [“Counsel plays a crucial part in transmitting information to
the client [about waiver of the right to a jury trial]. Time and
time again, our precedent has recognized as much, incorporating
within the totality of relevant circumstances not only the fact of
representation by counsel, but also record references to
discussions between counsel and defendant”]; Id. at p. 999
[“Courts generally rely on counsel to transmit to defendants
critical information about whether to waive the jury trial right
and the consequences of waiving it”]; People v. Diaz (1992) 3
Cal.4th 495, 571 [jury waiver valid because, among other factors,
14
“defendant acknowledged that he had thoroughly discussed the
jury waiver with his attorney”].)
Here, counsel informed the trial court that he had “spoken
to [appellant] about his jury trial rights.” Appellant responded in
the affirmative to the court’s question, “[Counsel] indicates that
you understand that right [the right to a jury trial]; is that true?”
The dissent’s rejection of appellant’s affirmative response is
based on speculation that, because of his “mental health issues
dating from his childhood,” he did not understand his right to a
jury trial. (Dis. Opn., post, at p. 2.) No expert testimony or any
other evidence was presented on this issue. “[A]n inference
[cannot] be based on mere possibility or flow from suspicion,
imagination, speculation, supposition, surmise, conjecture or
guesswork.” (Kidron v. Movie Acquisition Corp. (1995) 40
Cal.App.4th 1571, 1581.) “It must logically flow from other facts
established in the action.” (People v. Austin (1994) 23
Cal.App.4th 1596, 1604, disapproved on another ground in People
v. Palmer (2001) 24 Cal.4th 856, 861, 867.) Other facts here –
appellant’s extensive experience with the criminal justice system,
as manifested by his 30-page rap sheet, and the colloquy among
the court, counsel, and appellant at the time of the jury waiver –
show that appellant understood his right to a jury trial. “The
record reveals no hesitation by [appellant] in entering the waiver,
nor uncertainty or confusion about its scope or
consequences . . . .” (Sivongxxay, supra, 3 Cal.5th at p. 188.)
The Supreme Court’s recommendation of an extended jury
advisement/waiver colloquy is to be applauded. (Sivongxxay,
supra, 3 Cal.5th at pp. 169-170.) But the recommendation is not
a straitjacket to be used in the pursuit of perfect justice. (See
Fleming, The Price of Perfect Justice (1974).) “‘“Matters of
15
reality . . . should be controlling.”’” (Sivongxxay, supra, 3 Cal.5th
at p. 170.) Matters of reality here confirm that appellant
knowingly and intelligently waived his right to a jury trial.
Conclusion
In Sivongxxay our Supreme Court noted: “[I]n various
contexts in which we have been called upon to ascertain whether
a waiver of constitutional rights was knowing and intelligent, we
have not focused myopically on the waiver colloquy in isolation,
but instead have conducted a more comprehensive assessment of
the totality of the circumstances. [Citations.] . . . [H]ere the
relevant circumstances include not only the colloquy, but also
defendant's prior criminal history, . . . and the fact that
defendant was represented by counsel.” (Sivongxxay, supra, 3
Cal.5th at p. 173, fn. 8.) In the present case, an additional
relevant circumstance is that counsel discussed the jury waiver
with appellant. We “uphold the validity of [the] jury waiver”
because “‘“the record affirmatively shows that [the waiver] is
voluntary and intelligent under the totality of the
circumstances.”’” (People v. Daniels, supra, 3 Cal.5th at p. 991
(lead opn. of Cuéllar, J.).)
Disposition
The order committing appellant for treatment to the
Department of State Hospitals as an MDO is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
I concur:
PERREN, J.
16
GILBERT, P.J.
I respectfully dissent.
My colleagues attribute a degree of sophistication to B.P.
that might not be there. They make a plausible argument that
he may be well versed in and understand the nature of jury
trials. But such conjecture does not convince me to reject both
B.P.’s and the Attorney General’s arguments. The Attorney
General quotes this court’s caution in People v. Blancett (2017) 15
Cal.App.5th 1200, 1202: “Prior to conducting a bench trial, the
trial court must obtain personally from an MDO defendant a
knowing, intelligent, and voluntary waiver of the right to a jury
trial unless the court finds substantial evidence that the
defendant lacks the capacity to make such a waiver.” (Ibid.,
quoting People v. Blackburn (2015) 61 Cal.4th 1113, 1116.)
Although B.P. pleaded guilty to offenses including child
molestation prior to the instant MDO hearing, we know nothing
about the nature or extent of the advisements, if any, he received
before entering earlier pleas. The majority argues that “[f]or
three of the many misdemeanor convictions, the rap sheet shows
that, while represented by counsel, he (B.P.) waived his right to a
jury trial.” (Maj. opn. ante, at p. 8.)
The assumption that B.P. knew the significance of a jury
waiver assumes he had the capacity to waive jury. His lengthy
record renders this assumption seemingly reasonable on one
hand, but highly problematic on the other. He is a mentally
disordered offender who suffers from schizophrenia. To what
extent this may affect his capacity to waive jury I leave to others,
but it raises a doubt in my mind.
I cannot say whether B.P.’s past jury waivers were affected
by his mental illness. Neither can I determine whether those
1
past judicial encounters were fresh in his mind at the time of this
hearing.
B.P. was initially found incompetent to stand trial on the
commitment offense. He has a long history of mental health
issues dating from his childhood. This history suggests that
whatever B.P.’s interaction with the court system in the past, his
current jury waiver, “yeah,” said twice over a Zoom hearing, is
not reassuring.
The remand in Blackburn was limited to the circumstances
of that case. There is no reason here that a limited remand
involving the trial court’s inquiry concerning B.P.’s
understanding of the nature of a jury trial would not be
appropriate. Depending upon B.P.’s responses, the court will be
in a position to determine whether his waiver of jury trial was
knowing, intelligent, and voluntary.
I would remand in accordance with the Attorney General’s
suggestion.
NOT TO BE PUBLISHED.
GILBERT, P. J.
2
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, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Eric J. Kohm, Deputy Attorney
General, for Plaintiff and Respondent.