Filed 4/15/22 P. v. Griffin CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B313855
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM006097)
v.
DAVID MARTIN GRIFFIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. James N. Bianco, Judge. Affirmed.
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, Assistant
Attorney General, William H. Shin and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant David Martin Griffin appeals from
the trial court’s order extending his commitment as a mentally
disordered offender (MDO) pursuant to Penal Code section 2970.
Defendant contends reversal is warranted because the trial court
failed to properly advise him of his right to a jury trial at the
recommitment hearing and the record does not otherwise
affirmatively show he made a knowing and voluntary waiver of
that right.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of stalking and sentenced to prison
(Pen. Code, § 646.9, subd. (a)). After his release, defendant
violated parole by engaging in stalking behavior again. In 2002,
defendant was admitted to the Department of State Hospitals as
an MDO. His commitment has been repeatedly renewed since
then. Some of the recommitment proceedings were jury trials.
Several times defendant waived his right to a jury trial and
proceeded with a court trial. He is presently a patient at Coalinga
State Hospital with a primary diagnosis of schizoaffective
disorder, bipolar type.
On January 28, 2021, the People filed a petition to extend
defendant’s commitment for another year. At a pretrial hearing
on May 18, 2021, defense counsel advised the court that she and
defendant spoke the previous day and that defendant wanted to
waive his right to a jury trial and have the petition set for a court
trial. Thereafter, the court twice asked defendant if he wanted to
give up his right to have a jury trial and to have a judge decide the
petition and defendant said yes both times, adding the second
time that he “plan[ned] on getting out. The doctors want me out
of here.”
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The bench trial took place on June 2, 2021. Defendant
concedes his psychologist and the two evaluators for the
Department all agreed he suffers from schizoaffective disorder,
bipolar type, was not in remission and had little or no insight into
his illness or willingness to participate in a treatment program.
Defendant testified “I don’t have no mental illness.” He said he
did not need psychiatric treatment, did not need medication,
would not seek treatment if released and wanted to be off his
medications.
After listening to argument, the court granted the petition,
finding defendant suffers from a severe mental disorder that is
not in remission and he presents a substantial danger of physical
harm to others. Defendant’s commitment was extended to
May 24, 2022.
This appeal followed.
DISCUSSION
In People v. Blackburn (2015) 61 Cal.4th 1113, 1116
(Blackburn), the Supreme Court concluded that trial courts must
advise a defendant in an MDO recommitment proceeding of their
right to a jury trial and must obtain a personal waiver of that
right before proceeding with a bench trial.
Blackburn also held that “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.” (Blackburn,
supra, 61 Cal.4th at p. 1136.)
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Defendant contends the record does not affirmatively show
his waiver was knowing and intelligent. We disagree.
In People v. Sivongxxay (2017) 3 Cal.5th 151 (Sivongxxay),
the Supreme Court reaffirmed that it has never “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.” (Id. at p. 167.) Instead, the focus is on an examination of
“the totality of the circumstances.” (Ibid.) The court emphasized
“the value of a robust oral colloquy in evincing a knowing,
intelligent, and voluntary waiver of a jury trial” (id. at p. 169) and
offered general guidance and a recommendation that trial courts,
before taking a waiver, “advise a defendant of the basic mechanics
of a jury trial” (ibid.). But the court also stated its guidance was
“not intended to limit trial courts to a narrow or rigid colloquy.”
(Id. at p. 170.)
The validity of a waiver depends upon “ ‘the unique
circumstances of each case.’ ” (Sivongxxay, supra, 3 Cal.5th at
p. 166, quoting Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269,
278; accord, People v. Blancett (2017) 15 Cal.App.5th 1200, 1205.)
The court suggested that trial courts may ask a defendant
whether they “had an adequate opportunity to discuss the decision
with his or her attorney” or whether they understood or had “any
questions about the right being waived. Ultimately, a court must
consider the defendant’s individual circumstances and exercise
judgment in deciding how best to ensure that a particular
defendant who purports to waive a jury trial does so knowingly
and intelligently.” (Sivongxxay, at pp. 169-170.) A defendant’s
experience in the legal system is one relevant consideration. (See,
e.g., Blancett, at p. 1206.)
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The trial court here obtained a personal waiver from
defendant and obtained his agreement that he wished to proceed
with a bench trial, but the court did not make any advisements
about the basic mechanics of the jury trial right. We agree the
better practice is for trial courts to ensure a valid waiver by
“careful compliance with the express advisement and waiver
process.” (Blackburn, supra, 61 Cal.4th at p. 1137.) We
nevertheless conclude from the totality of circumstances that
defendant’s waiver was knowing and intelligent and that any
error by the court in accepting defendant’s waiver was harmless.
Of particular relevance here is defendant’s experience with
MDO proceedings for almost 20 years, as well as prior experience
in the criminal justice system.
The record demonstrates defendant regularly agreed to
waive his right to a jury trial and proceed with a bench trial after
having been given various admonitions on the jury trial right. For
instance, in 2006, defendant was asked if he understood that he
had a right to a jury trial, meaning “12 people to determine if your
commitment should be extended or not.” Defendant said yes and
that he agreed to waive that right and understood the court would
make the final determination.
Then again in 2007, defendant was advised he had “the
right to have [his] case tried by either a court or a jury. A jury
would be where 12 citizens from the community come in and hear
the evidence . . . and they decide the case.” When asked how he
wished to proceed, defendant said he wanted a court trial.
In 2013, defendant appeared before Judge Bianco, the same
judge that conducted the 2021 court trial at issue here. Defense
counsel advised the court defendant wanted a bench trial. The
court then asked defendant, “Mr. Griffin, do you understand that
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you have a right to a trial by jury in this case where 12 jurors
would hear your case and they would all have to agree before the
petition could be found true? Do you understand that?”
Defendant said yes and the court continued, “do you give up the
right to have your case heard by a jury and agree that I can hear
your case as the judge?” Defendant again said yes.
At a pretrial conference in 2016, defendant said he wanted a
court trial several times but that he wanted a jury trial if the
judge ruled against him. The court explained the process did not
work that way and defendant had to choose between a jury trial
and a court trial. Defendant reiterated he wanted the judge then
because he wanted out. When defense counsel was asked if that
was his understanding of his client’s wishes, defense counsel
confirmed that defendant wanted to proceed with a bench trial.
In contrast, in 2017 and 2018, defendant exercised his right
to proceed with a jury trial on the recommitment petitions.
Defendant was present during those jury trials, including when
the juries were instructed that the verdict must be unanimous.
In 2019 and 2020, defendant again agreed to waive his right
to a jury. Court trials were conducted both years by
Judge Bianco.
At the pretrial hearing on May 18, 2021, defense counsel
advised Judge Bianco that she and defendant spoke the previous
day and that defendant wanted to again waive his right to a jury
trial and have the petition set for a court trial. The court asked
defendant, “you understand that you have the right to have a trial
by a jury in this case?” Defendant said yes. The court asked
defendant twice if he wanted to give up that right and have a
judge trial and defendant answered yes both times.
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Defendant argues that an affirmative showing may not be
“presumed from a silent record.” (Blackburn, supra, 61 Cal.4th at
p. 1136.) We agree with the general principle but do not find the
record to be silent here. Defendant has always been represented
by counsel who have been available to advise defendant about his
rights. Defendant’s counsel for the May 2021 hearing said she
had a prior discussion with defendant before she told the court
defendant wanted a bench trial. Defendant’s combined experience
in the legal system after numerous MDO recommitment
proceedings, where he alternatively chose to have some jury trials
and some bench trials, is substantial evidence he made a knowing
and intelligent waiver of his right to a jury trial in 2021.
DISPOSITION
The court’s order of June 2, 2021, granting the petition
pursuant to Penal Code section 2970 to extend the commitment of
David Martin Griffin is affirmed.
GRIMES, J.*
WE CONCUR:
ROTHSCHILD, P. J. BENDIX, J.
* Justice of the Court of Appeal, Second District,
Division Eight, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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